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KF 

FALLACIES        <^ 
OF  THE  LAW 


BY 

HENRY  S.  WILCOX, 

OF  THE    CHICAGO    BAR. 


AUTHOR  OF 

FOIBLES    OF    THE    BENCH,    FOIBLES    OF    THE    BAR, 

FRAILTIES   OF   THE   JURY,  A    STRANGE    FLAW, 

THE    TRIALS    OF   A    STUMP    SPEAKER, 

ETC. 


Published  by 

LEGAL   LITERATURE    COMPANY, 

Chicago,  III. 


C'7^ 


Copyright,  1907, 

by 

HENRY  S.  WILCOX. 

Entered  at  Stationers  Hall, 
London,  Eng. 


^r*  *  ^  „  •  •   « 


•      «•     ,*"       )•«♦••     •  *  »  *  ^  '' 


•••        .».       ?-' 


PREFACE. 

This  volume  is  the  last  of  a  series  projected 
more  than  a  year  ago  relating  to  court  matters 
and  designed  to  furnish  information  to  those  who 
^       may  be  interested  concerning  the  deficiencies  of 
^       bench,  bar,  jury  and  the  law.      The  subject  of 
%      this  volume  is  so  large  that  it  has  been  necessary 
*      to  cram  many  facts  into  a  small  compass,  and 
this  has  prevented  the  use  of  much  ornamenta- 
tion.    The  author  has  striven  to  strip  the  naked 
O       truth  down  to  the  very  bone,  relying  upon  the 
5       importance  of  the  subject  to  win  the  attention  of 
5       the  reader. 

^  Some  attention  has  been  called  to  the  funda- 

"^       mental  errors  in  the  organic  laws  of  our  national 

government  and  the  methods  employed  in  pro- 

ac       viding  officials,  but  the  most  space  has  been  de- 

^       voted  to  considering  that  great  body  of  doctrine 

®       known  as  the  common  law,  which  is  in  force  in 

5       every  state  in  the  Union  except  Louisiana.     This 

system  is  mainly  relied  upon  to  determine  our 

civil  rights,  duties  and  responsibilities,   and   to 

provide  redress  for  wrongs.     It  was  not  devised 

by  any  law-giver.     It  is  not  like  a  garden  which 


433G65 


4  PREFACE. 

some  expert  gardener  has  planted  and  trimmed, 
but  is  like  a  thicket  which  has  been  sown  by  the 
wind  and  trimmed  by  the  whirlwind,  where  every 
kind  of  seed  that  could  find  a  lodgment  has  grown 
the  best  it  could,  and  trees  of  beauty  and  utility 
contend  with  briars,  weeds  and  underbrush.  Or 
perhaps  it  may  be  likened  unto  a  garment  made 
by  a  bungler  in  remote  antiquity  and  on  which 
every  generation  since  has  placed  some  patches, 
until  it  resembles  a  crazy-quilt  in  its  variety  of 
color  and  texture  and  is  without  any  of  the  har- 
mony that  ordinarily  pertains  to  that  article. 

The  laws  defining  our  rights  originated  in 
compromises  made  between  tyrants  who  ruled 
kingdoms  or  empires  and  tyrants  who  ruled 
dukedoms  or  manors.  Many  laws  imposing  du- 
ties arose  out  of  the  concessions  of  landlords  and 
masters  to  tenants  and  serfs.  The  laws  which 
provide  remedies  have  emanated  from  the  edicts 
of  kings  and  military  chieftains  who,  during  brief 
periods  between  wars  and  dissipations,  have 
devoted  some  time  to  devising  methods  for  re- 
dressing the  greater  atrocities. 

As  the  generations  of  mankind  have  come  and 
gone  a  few  new  features  have  been  invented,  and 
many  patches  in  the  shape  of  amendments  have 
been  placed  by  legislators,  or  produced  by  the 


PREFACE.  5 

ingenuity  of  judges;  so  we  now  have  a  sort  of 
hodge-podge  thrown  together  by  accidents  of 
antiquity  and  worn  into  a  kind  of  homogeneous 
mass  by  the  grinding  friction  of  judicial  conflicts. 
The  enormous  bulk  of  this  mass  prevents  any 
criticism  in  minute  detail.  The  general  reader 
would  not  have  the  patience  to  read  such  a  pro- 
duction. The  author  has  merely  undertaken  to 
pick  out  a  few  of  the  absurdities  whose  peaks  ap- 
pear the  loftiest  and  to  direct  special  attention  to 
them  as  typical  parts  of  the  great  chain. 

One  whose  attention  has  not  been  called  par- 
ticularly to  the  many  defects  in  our  laws  can  not 
realize  how  very  bad  they  are.  It  would  be  diffi- 
cult to  invent  a  more  cumbersome,  complicated 
and  bulky  machine  than  the  system  of  jurispru- 
dence of  this  country.  Indeed,  it  would  be  quite 
difficult  for  a  writer  in  any  language,  however 
great  his  command  of  words  might  be,  to  over- 
state some  of  the  faults  that  inhere  in  the 
system. 

It  is  hoped  that  the  critics,  who  have  dealt 
kindly  with  the  other  volumes,  may  still  have  pa- 
tience to  review  this  in  a  charitable  spirit.  The 
bearer  of  bad  tidings  is  likely  to  be  unwelcome, 
and  especially  so  if  they  pertain  to  our  dearest 
interests.     The  potion  intended  to  purge  us  of 


6  PREFACE. 

our  faults  may  be  so  bitter  that  no  amount  of 
sugar  coating  can  sweeten  it,  and  yet  to  be  cured 
we  must  take  it. 

In  the  four  volumes  of  this  series  the  author 
has  offered  his  countrymen  the  gleanings  of  his 
professional  life  for  the  purpose  of  assisting 
those  who  wish  to  improve  the  present  methods. 
If  their  faults  offend  the  reader's  sensibilities,  the 
author  begs  indulgence  on  the  ground  of  the  pur- 
pose that  inspired  them.  Like  the  widow's  mite, 
may  they  be  valued  as  expressions  of  a  desire  to 
aid  a  just  cause  to  the  full  extent  of  the  giver's 
capacity. 


CONTENTS. 

Page. 

Preface 3 

CHAPTER   I. 

The  Law:  Its  Functions  and  Attributes       9 

CHAPTER    II. 

Unjust  Discriminations    -        -        -        -     20 

CHAPTER   III. 

Unjust  Restraints 29 

CHAPTER  IV. 

Unjust  Duties 40 

chapter  v. 
Unjust  Duties — Continued         -         -         -     48 

chapter  VI. 
Fallacies  of  General  Laws    -        -        -    60 

CHAPTER  VII. 
Fallacies  of  General  Laws — Continued  •     75 

CHAPTER   VIII. 
Legal  Fictions 88 

CHAPTER   IX. 
Defects  in  Remedies  Provided  by  Law  -     98 


8  CONTENTS, 

CHAPTER  X.  W<- 

Defective  Judicial  Machinery       -        -     114 

CHAPTER   XI. 
Defective  Judicial  Machinery — Continued  126 

CHAPTER   XII. 
Laws  Concerning  Evidence    -        -        -     135 

CHAPTER   XIII. 
Laws  Concerning  Evidence — Continued      146 

CHAPTER    XIV. 

Effect  of  a  Judgment    -        -        -        .     157 

CHAPTER    XV. 

Fundamental  Errors      -        -        -        .     170 

CHAPTER   XVI. 

Unjust  Distribution  of  Political  Power     181 

CHAPTER   XVII. 

Survivals  of  Monarchy  -        -        .        .     191 
CHAPTER   XVIII. 

Conclusion       ......    aoo 


CHAPTER  I. 

THE  LAW  :    ITS  FUNCTIONS  AND  ATTRIBUTES. 

All  believe  that  they  have  rights  and  duties 
which  should  not  be  violated,  and  that  for  every 
violation  there  should  be  some  form  of  redress; 
but  what  these  rights  and  duties  are  and  how 
their  violations  should  be  redressed  are  ques- 
tions relative  to  which  there  has  ever  been  and 
perhaps  forever  will  be  a  great  diversity  of  opin- 
ion. As  a  necessary  agency  for  protecting  these 
rights,  enforcing  these  duties  and  redressing 
their  violations,  governments  have  been  insti- 
tuted and  tolerated  and  rules  of  conduct  made. 
These  rules,  called  laws,  are  efforts  on  the  part 
of  those  who  control  the  government  to  prescribe 
the  rights  and  duties  of  the  governed  and  how 
their  violation  should  be  redressed.  Thus  a  law 
may  be  a  mere  tool  of  a  tyrant  who  has  devised 
it  to  despoil  the  governed,  or  it  may  be  a  bul- 
wark of  liberty  erected  by  the  governed  to  fence 
themselves  from  arbitrary  power.  It  may  be  the 
creature  of  a  conspiracy  of  powerful  persons  to 
obtain  an  unfair  advantage  over  their  fellows,  or 


lO  FALjLA  CI^^'  QE:  TME  LA  W, 

it  may  .beV'the,  Cuiiflfflgly  ce)ntrived  scheme  of 
venal  regislators  to  sahdbag  commercial  inter- 
ests out  of  bribe  money. 

All  honest  laws,  worthy  to  adorn  the  statute 
books  of  a  free  people,  should  possess  certain 
attributes : 

I.  If  a  law  defines  a  right  or  imposes  a  duty 
it  should  be  in  accord  with  the  opinion  generally 
prevalent  among  the  governed  relative  to  such 
rights  and  duties.  A  law  may  conform  to  prov- 
erbs in  ancient  books  or  correspond  with  pre- 
cepts which  are  supposed  to  emanate  from  a 
deity,  or  it  may  have  the  sanction  of  the  wisest 
moral  philosophers  and  seers,  yet  if  it  has  not 
behind  it  the  general  desire  of  the  community 
for  its  enforcement  it  will  soon  become  a  dead 
letter  and  an  incumbrance  upon  the  statute. 
This  would  seem  to  be  self-evident,  and  yet 
members  of  the  legislature  frequently  vote  for 
laws  which  they  themselves  do  not  expect  to 
obey,  and  various  moral  leaders  and  teachers 
clamor  loudly  for  enactments  which  they  do  not 
expect  to  enforce,  and  have  no  reason  to  believe 
the  community  will  enforce  or  obey.  This 
causes  the  statutes  to  be  enlarged  beyond  the 
ordinary  power  of  comprehension  and  the  com- 
munity to  be  filled  with  law  breakers,  many  of 


FALLACIES  OF  THE  LAW.  II 

whom  are  unconscious  of  the  fact.  These  un- 
necessary statutes  are  seldom  used  except  for 
the  purpose  of  private  malice  or  to  assist  the 
dishonest  in  repudiating  their  contracts. 

2.  All  laws  should  be  written  in  familiar 
words,  so  that  they  can  be  easily  read  and  un- 
derstood by  those  required  to  obey  them. 

All  statute  laws  are  couched  in  words  and 
phrases  having  special  and  technical  meanings 
that  are  not  familiar  to  the  greater  portion  of 
those  who  might  read  them.  Many  are  not 
clear  to  lawyers,  and  even  judges  find  it  difl&cult 
to  ascertain  their  meaning. 

Only  a  small  portion  of  our  laws  are  in  the 
statutes.  A  much  larger  bulk  is  called  the 
"common  law,"  which  is  even  more  difficult  to 
ascertain  and  understand  than  acts  of  the  legis- 
lature. To  find  this  law  one  must  explore  many 
treatises  and  decisions  of  courts  more  or  less 
conflicting.  Even  the  indices  to  the  numerous 
volumes  containing  it  are  so  many  and  so  diffi- 
cult to  understand  that  they  afford  no  knowledge 
to  the  layman.  Only  lawyers  have  any  definite 
knowledge  of  these  laws,  and  the  most  learned 
of  them  hardly  dare  hazard  an  opinion  without 
a  special  search  —  often  of  the  most  tedious 
character. 


12  FALLACIES  OF  THE  LAW, 

Much  has  been  written  in  condemnation  of 
the  tyrant  who  wrote  his  edicts  in  small  letters 
and  posted  them  so  high  that  they  could  not  be 
read.  For  all  practical  purposes  our  present 
system  of  jurisprudence  is  quite  as  unavailable 
to  the  lay  members  of  the  community.  If  those 
who  have  no  opportunity  to  learn  of  the  existence 
of  a  law  are  thereby  caused  to  violate  it,  the 
violation  is  a  mere  accident.  How  can  any 
government  justly  punish  an  accident  when  it 
has  caused  it  or  contributed  to  cause  it  by  print- 
ing laws  in  an  unfamiliar  tongue  ? 

3.  Laws  should  emanate  from  a  supreme  au- 
thority, so  that  their  force  and  validity  will  be 
absolute  and  certain.  If  that  which  purports  to 
be  law  and  is  relied  upon  as  such  finally  proves 
invalid,  it  is  but  a  snare.  It  is  bad  enough  to 
be  deceived  by  the  pirates  and  buccaneers  of 
trade  and  finance :  to  be  thus  treated  by  the 
government  we  sustain  is  intolerable. 

Many  of  our  laws  are  infected  with  the  virus 
of  uncertainty  because  they  emanate  from  infe- 
rior sources.  Laws  enacted  by  state  legislatures 
may  be  declared  invalid  by  the  courts  because 
the  judges  believe  they  do  not  accord  with  the 
constitution  of  the  state  or  of  the  United  States, 
or  with  laws  passed  in  pursuance  of  the  latter. 


FALLACIES  OF  THE  LAW.  1 3 

The  most  solemn  act  of  a  state  legislature  may 
in  a  prosecution  for  crime  be  held  invalid  by  a 
country  justice  of  the  peace  and  the  defendant 
discharged;  for  in  such  cases  no  appeal  is  al- 
lowed the  prosecution.  A  single  judge  may 
thus  nullify  an  act  of  congress,  the  passage  of 
which  has  consumed  much  of  the  time  of  the 
congress  and  the  President  for  an  entire  session. 
After  a  subsidy  has  been  spent  in  framing  a 
statute  and  millions  in  arranging  to  obey  it  the 
breath  of  a  court  may  blow  it  into  nothingness. 

If  the  constitution  is  so  difficult  to  understand 
that  representatives  of  the  people,  sworn  to  sup- 
port it,  can  not  interpret  it  without  the  aid  of  a 
court,  why  not  have  a  court  determine  the  con- 
stitutionality of  the  proposed  enactments  before 
they  are  finally  voted  upon  by  the  legislative 
body? 

That  nebulous  mass  of  rules  and  quibbles 
which  we  call  the  "common  law"  has  no  abso- 
lute authority  as  its  basis.  Some  portions  of 
it  are  supposed  to  have  originated  in  statutes 
enacted  in  remote  antiquity  but  now  lost,  or  to 
have  come  from  ancient  customs  existing  "from 
a  time  whereof  the  memory  of  man  runneth  not 
to  the  contrary."  Neither  supposition  can  be 
shown  to  be  true.     So  far  as  we  know  most  of  it 


14  FALLACIES  OF  THE  LAW. 

has  been  extracted  from  the  opinions  of  judges 
as  to  what  the  law  ought  to  be.  Where  there 
were  no  legislative  enactments  affecting  the 
questions  the  judges  of  England  and  this  country 
assumed  there  ought  to  be,  and  instead  of  refus- 
ying  relief  invented  a  rule  and  declared  that  to  be 
the  law  which  they  thought  should  be.  Deci- 
sions thus  made  do  not  have  absolute  authority 
except  in  the  particular  case  where  rendered. 
The  same  court  or  any  other  court  may  disregard 
them,  yet  they  have  a  kind  of  weight  in  guiding 
the  subsequent  decisions  of  courts  when  the 
same  question  is  considered,  and  may  turn  the 
scale  one  way  or  the  other.  The  weight  such 
decisions  have  depends  upon  the  estimate  the 
trial  judge  has  of  the  ability  of  the  members  of 
the  court  that  made  the  decision,  and  his  notion  of 
the  similarity  that  exists  between  the  two  cases. 
In  this  way  the  centuries  have  produced  an 
immense  library  of  books  which  contain  the  de- 
cisions of  high  courts,  the  comments  of  writers 
thereon,  and  extracts  and  digests  therefrom. 
Every  year  has  added  to  the  mass  until  a  mere 
catalogue  of  the  books  in  a  law  library  is  nearly 
as  large  as  the  family  bible.  Thus  a  situation  is 
created  which  entails  great  labor  upon  the  courts 
and  the  lawyers  who  undertake  to  aid  them  in 


FALLACIES  OF  THE  LAW.  15 

deciding  cases.  A  wide  field  is  thereby  opened 
for  argument.  Such  arguments  depend  for 
strength  upon  the  number  of  decisions  in  similar 
cases  that  are  cited  in  support  of  the  position 
taken.  Much  time  is  required  in  the  prepara- 
tion of  these  arguments,  and  thus  the  expense  of 
a  trial  is  made  so  great  that  it  often  exceeds  the 
amount  involved  in  the  suit.  The  most  thor- 
ough research  that  can  be  made  rarely  succeeds 
in  making  certain  the  law  relative  to  the  disputed 
point.  All  is  but  guesswork  until  the  highest 
court  to  which  the  case  can  be  taken  has  decided 
it  and  denied  a  petition  for  a  rehearing. 

The  laws  should  be  made  by  a  body  having 
supreme  authority,  and  published  so  that  they 
can  be  read  without  difficulty.  Then  they  could 
be  comprehended  and  relied  upon  as  real  laws 
and  not  mere  opinions  which  a  judge  may  follow 
or  not  as  he  pleases. 

4.  The  number  of  laws  should  not  be  so  great 
as  to  make  a  knowledge  of  them  impracticable 
to  those  who  are  required  to  obey  them.  When 
the  bulk  is  swollen  beyond  the  power  of  com- 
prehension by  the  ordinary  person  the  force  of 
the  whole  mass  is  seriously  weakened.  We  have 
far  too  many  laws.  If  we  leave  out  the  so  called 
common  law,"  which  no  one  can  know  abso- 


1 6  FALLACIES  OF  THE  LAW. 

lutely,  because  it  has  no  real  and  certain  exist- 
ence, and  take  only  our  legislative  enactments 
and  the  ordinances  passed  by  cities  in  pursuance 
thereof,  the  bulk  is  still  enormous.  It  is  probable 
that  no  citizen  of  the  city  of  Chicago  knows  one- 
tenth  of  the  ordinances  that  have  been  passed 
to  govern  him.  The  legislature  continues  to 
pass,  amend  and  supplement  the  laws,  until  the 
compound  has  become  so  prodigious  that  even 
those  who  voted  for  the  laws  forget  that  they  are 
in  existence.  The  passion  for  law-making  is  so 
great  that  no  state  or  territory  is  without  a  sur- 
plus. The  soil  of  a  country  may  be  too  poor  to 
raise  cacti  or  jack-rabbits,  and  yet  be  rich  enough 
to  produce  an  immense  crop  of  legislative  en- 
actments. Acts  and  acts  amending  acts  multiply 
like  microbes,  until  no  one,  unless  compelled  to 
do  so,  will  read  the  books  containing  these  legis- 
lative fulminations.  One  would  suppose  from 
this  that  the  rights  of  an  American  citizen  are  so 
important  and  numerous  that  they  can  not  be 
stated  in  a  reasonable  compass,  or  that  his  duties 
are  so  intricate  that  it  takes  a  wagon-load  of 
books  to  describe  them,  or  that  the  number  of 
crimes  which  he  is  likely  to  commit  are  so  hard 
to  define  that  merely  stating  them  is  a  mighty 
task.     Neither  assumption  can  account  for  the 


FALLACIES  OF  THE  LAW.  17 

quantity  of  statutes  that  encumber  our  shelves. 
The  more  rights  we  have  the  less  the  number  of 
words  necessary  to  state  them.  It  is  the  limita- 
tions, and  not  the  rights,  that  require  amplifica- 
tion. These  ponderous  volumes  of  statutes  have 
emanated  from  the  attempts  of  legislatures  to 
go  into  particulars  and  regulate  all  the  common 
affairs  of  life  in  minute  detail. 

Laws  should  state  general  principles  where 
they  are  intended  to  apply  generally,  and  where 
they  apply  only  to  a  special  vocation  they  should 
state  general  principles  applying  to  that  voca- 
tion. The  people  generally  could  then  easily 
inform  themselves  of  the  general  laws,  and  those 
engaged  in  a  particular  vocation  could  learn  the 
laws  appertaining  to  it  as  a  part  of  the  technical 
knowledge  of  that  vocation.  The  general  rules 
thus  clearly  stated  could  be  applied  by  the  intel- 
ligence of  the  individual  to  the  particular  ques- 
tion. If  such  a  method  was  adopted  the  book 
containing  the  laws  need  not  be  large.  The 
entire  Ten  Commandments  do  not  contain  as 
many  words  as  many  a  single  section  of  a  state 
statute  or  city  ordinance.  This  multiplication 
of  words  rarely  makes  the  statute  clearer  or  aids 
in  its  construction.  It  usually  makes  it  more  dif- 
ficult to  comprehend  and  enforce. 


1 8  FALLACIES  OF  THE  LAW. 

5.  The  law  should  be  just.  The  desire  for 
justice  is  strong  in  every  human  breast.  Even 
animals  exhibit  pain  when  they  see  favoritism 
extended  to  their  associates.  Any  law  which 
does  not  express  the  common  idea  of  justice  in 
the  community  will  not  be  enforced  and  will  be 
generally  despised.  Persons  often  differ  in  the 
opinions  they  have  formed  relative  to  justice; 
nevertheless  each  person  will  contend  for  his 
own,  and  many,  rather  than  be  deprived  of  that 
which  they  believe  to  be  due  them,  will  sacrifice 
property,  and  even  life.  There  can  be  no  social 
peace  in  any  community  until  its  members  have 
reached  some  agreement  as  to  what  are  the  just 
rights  of  each,  and  all  have  been  made  secure  in 
those  rights.  Notwithstanding  the  great  diver- 
sity of  opinion  among  men  as  to  what  is  justice 
in  particular  cases,  in  law  justice  must  be  a  syno- 
nym for  equality.  If  a  law  places  a  greater  bur- 
den upon  one  member  of  the  community  than 
upon  another  under  exactly  the  same  circum- 
stances it  is  not  considered  just.  A  law  which 
deprives  one  member  of  rights  allowed  to  others 
similarly  situated,  or  confers  upon  one  a  benefit 
which  is  not,  as  far  as  possible,  conferred  upon 
all  others  thus  situated,  violates  the  principles  of 
justice.     Measured  by  this  standard,  most  gov- 


FALLACIES  OF  THE  LAW.  19 

emments  must  be  considered  unjust,  and  ours  is 
not  free  from  fault. 

6.  The  laws  should  afford  redress  for  wrongs 
sustained,  and  this  redress,  to  be  effective,  must 
be  sure,  prompt  and  complete.  They  should  ac- 
curately measure  the  quantity  of  redress  afforded 
and  provide  the  legal  machinery  by  which  it  can 
be  obtained.  If  this  machinery  be  so  complex 
and  ill  adjusted  that  it  can  be  used  only  with 
great  diflSculty;  if  it  be  encumbered  with  many 
clogs  and  hinderances  that  cause  frequent  inter- 
ruptions, delays  and  breakdowns;  or  if  the  em- 
ployment of  the  machine  causes  so  large  expense 
that  the  redress  is  not  worth  its  cost,  the  laws 
providing  for  such  redress  will  be  mere  illusions. 
Many  such  defects  inhere  in  our  laws. 

The  following  chapters  will  first  consider 
some  unjust  features  and  general  defects  in  the 
laws,  and  then  the  inefficiency  of  the  machinery 
and  rules  provided  for  redressing  grievances, 
and  conclude  by  pointing  out  certain  funda- 
mental fallacies  in  the  organic  structure  of  the 
general  government. 


CHAPTER  II. 

UNJUST   DISCRIMINATIONS. 

Laws  that  discriminate  between  members  of  a 
community  should  have  a  just  reason  for  such 
discrimination.  Consider  a  few  illustrations: 
About  half  of  our  population  is  denied  equal 
rights  at  the  ballot-box  on  account  of  sex.  In 
most  of  the  states  the  members  of  the  female  sex 
have  no  right  to  vote  whatever;  in  some  they  vote 
for  candidates  for  certain  offices,  and  in  a  very 
few  they  have  full  suffrage.  The  function  of 
voting  is  not  a  sex  function.  The  necessary 
qualifications  are  intellectual  and  moral,  and  not 
sexual.  Why  then  should  the  best  and  wisest 
woman  be  disfranchised  and  the  lowest  grade  of 
male  intelligence  be  given  the  ballot  ?  Note  an- 
other sex  discrimination :  a  female  arrives  at  law- 
ful age  at  eighteen ;  a  male  must  wait  until  he  is 
twenty-one.  The  ability  to  manage  one's  own 
affairs  depends  on  intelligence  instead  of  sex. 
Why  should  the  girl  who  may  never  get  old 
enough  to  vote  become  competent  to  make  a  legal 
contract   three   years    earlier   than  her  brother? 


FALLACIES  OF  THE  LAW.  21 

There  are  also  laws  relating  to  property  and  laws 
punishing  certain  acts  of  immorality  where  a  like 
discrimination  is  made  on  account  of  sex.  Why 
should  not  all  rights  conferred  by  law  on  man  be 
allowed  to  woman  on  the  same  terms  ?  Sex  does 
not  change  the  character  of  the  matter  which  is 
the  subject  of  legislation. 

Kinship  is  another  reason  given  for  discrimi- 
nation. The  laws  of  many  nations  bestow  po- 
litical power  upon  persons  on  account  of  kinship. 
We  consider  this  practice  unjust,  and  yet  we 
tolerate  laws  that  distribute  the  property  of  de- 
ceased persons  to  their  next  of  kin. 

Without  the  aid  of  government  no  one  could 
possess  more  property  than  he  could  defend  by 
his  own  prowess,  and  at  his  death  his  dominion 
over  it  would  cease.  Our  laws  protect  the  holder 
of  property  in  the  possession  of  his  property  and 
place  no  limit  upon  the  amount  he  may  acquire. 
One  person  more  greedy  and  clever  than  others 
may  acquire  vast  areas  of  land  and  enormous 
quantities  of  personal  property,  and  exclude  all 
others  from  its  enjoyment  by  the  power  of  the 
government.  Multitudes  may  thus  be  forced  to 
endure  great  need  in  a  land  of  plenty.  This  is 
tolerated  on  the  theory  that  it  promotes  the  gen- 
eral welfare.     When  the  possessor  of  this  great 


22  FALLACIES  OF  THE  LAW. 

fortune  is  about  to  die,  the  laws  permit  him  with 
his  dying  hand  to  subject  it  to  his  will  for  many 
years  after  his  death  and  to  devise  it  to  whomso- 
ever he  chooses.  If,  however,  he  does  not  choose 
to  make  any  disposition  of  it,  then  the  law, 
instead  of  returning  it  to  the  community  for  the 
benefit  of  all  the  people,  strives  to  find  some 
blood  relative  of  the  deceased ;  and  if  successful, 
it  confers  the  estate  upon  him.  By  this  law  a 
stranger  to  the  deceased,  or  even  his  bitterest 
enemy,  may  become  the  beneficiary.  Is  there 
any  just  reason  for  this  discrimination  ?  This 
practice  frequently  injures  those  who  receive  the 
property:  getting  that  which  they  have  not 
earned,  the  recipients  have  no  just  appreciation 
of  its  value  and  they  are  soon  surrounded  by 
temptations  which  they  are  not  accustomed  to 
resist,  and  the  estate  is  squandered  to  enrich  the 
most  vicious  elements  in  the  community. 

Taxation  is  another  field  where  there  is  great 
discrimination.  Governments  are  expensive,  and 
means  for  defraying  expenses  are  usually  ob- 
tained by  levying  taxes.  Justice  requires  that 
each  person  receiving  the  protection  of  the  govern- 
ment should  pay  an  equal  share  in  the  necessary 
expenses  of  that  protection.  If  the  government 
also  provides  him  or  his  dependents  with  instruc- 


FALLACIES  OF  THE  LAW.  23 

tion,  he,  if  able,  should  pay  his  proportionate 
share  of  the  cost  of  that  instruction.  If  he  has 
property  protected  by  the  government  he  should 
contribute  that  proportion  of  the  expense  of  such 
protection  that  his  property  bears  to  the  common 
mass  thus  protected.  This  rule  would  produce 
at  least  three  forms  of  taxation : 

1.  A  per  capita  tax;  where  each  member  of 
the  community  would  pay  for  the  protection  of 
his  person. 

2.  A  property  tax;  where  each  would  pay  in 
proportion  to  the  value  of  the  property  he  pos- 
sesses. 

3.  An  educational  tax;  where  each  would  pay 
his  proportion  of  the  expenses  of  education  of 
himself  and  his  dependents. 

Many  states  have  no  per  capita  tax  whatever, 
and  where  one  exists  it  is  so  insignificant  in 
amount  that  it  gives  no  adequate  compensation 
to  the  state  for  protection  received. 

The  educational  tax  falls  as  heavily  upon  those 
who  have  received  no  direct  benefit  as  upon  those 
who  have  themselves  been  educated  or  had  large 
numbers  of  their  dependents  educated  at  the  pub- 
lic expense. 

Every  state  has  a  property  tax,  but  it  does  not 
bear  upon  all  kinds  of  property  in  proportion  to 


24  FALLACIES  OF  THE  LAW. 

its  value.  Much  property  is  made  exempt  by  law 
from  any  taxation  whatever,  and  the  lax  adminis- 
tration of  defective  statutes  permits  the  greater 
part  of  all  personal  property  subject  to  taxation 
to  escape  assessment.  Large  holdings  in  land 
are  undervalued  and  small  holdings  pay  much 
more  than  their  proportionate  share.  Thus  the 
cottage  is  taxed  more  in  proportion  than  the  pal- 
ace, and  the  heaviest  burdens  are  placed  upon 
those  who  are  least  able  to  bear  them. 

The  national  government  raises  its  revenue  by 
duties  on  imports  and  by  internal  taxes.  These 
are  levied  arbitrarily.  Some  articles  are  import- 
ed without  any  duty.  Where  duty  is  levied  some 
articles  must  pay  a  much  greater  proportion  than 
others.  The  internal  revenue  is  levied  upon  but 
few  articles,  and  these  are  singled  out  and  made 
to  bear  the  whole  burden.  Those  whose  habits  of 
life  are  such  that  to  them  these  articles  have  be- 
come necessities  are  made  to  bear  more  than  their 
share  of  the  burdens  of  taxation.  The  foregoing 
discriminations  in  levying  taxes  have  led  men 
strictly  honest  in  all  other  matters  to  take  delight 
in  cheating  the  government  out  of  the  money 
legally  due  it. 

Wealth  is  another  basis  for  legal  discrimina- 
tion.    On  all  criminal  charges  except  those  pun- 


FALLACIES  OF  THE  LAW.         25 

ishable  with  death  the  laws  usually  permit  the 
giving  of  bail,  by  furnishing  a  bond  or  depositing 
the  amount  of  money  fixed  by  the  court.  When 
this  bail  is  given  the  accused  is  released  from 
custody  until  his  trial  is  reached.  The  wealthy 
give  bail  and  go  free,  while  the  poor  must  lan- 
guish in  prison,  often  many  months,  awaiting 
trial.  Criminal  offenses  are  usually  punished  by 
fines,  which,  if  not  paid,  will  cause  imprisonment 
of  the  person  convicted.  By  this  method  the 
wealthy  person  who  is  able  to  pay  his  fine  escapes 
any  real  physical  discomfort,  while  the  poor  must 
go  to  prison.  Many  of  the  rich  are  therefore  not 
afraid  of  the  laws,  and  sometimes  increase  their 
wealth  by  violating  them. 

Nor  is  there  more  discrimination  in  the  laws 
themselves,  in  the  treatment  of  the  rich  and  the 
poor,  than  in  the  manner  of  their  enforcement. 
The  meshes  of  the  criminal  statute  spread  to  let 
the  rich  escape.  The  impecunious  inmates  of 
bawdy  houses  and  other  dens  of  vice  are  caught 
and  punished,  but  the  landlords  and  proprietors 
whose  pockets  bulge  with  profits  from  the  un- 
lawul  business  are  seldom  disturbed.  The  rich 
when  arrested  often  appear  by  proxy,  and  if  fined 
their  agents  settle  with  a  check  on  an  account 
from  which  it  is  hardly  missed.     The  poor  are 


26  FALLACIES  OF   THE  LAW. 

pushed  rudely  into  the  patrol  wagon  and  hustled 
to  the  jail  and  must  expiate  their  offenses  in 
prison.  Is  this  fair?  The  attendance  of  persons 
awaiting  trial  should  be  secured  by  placing  them 
under  guard  in  their  homes,  or  in  respectable 
boarding  houses  or  hotels.  When  convicted,  the 
punishment  should  be  such  as  to  punish  rich  and 
poor  alike. 

The  criminal  mills  are  now  continually  grind- 
ing out  a  grist  of  convictions,  and  the  govern- 
ment takes  its  share  of  the  toll  in  the  shape  of 
small  fines.  Acts  criminal  in  their  nature  should 
not  be  punished  by  fines.  This  places  a  price 
upon  iniquity. 

In  some  states  they  have  what  they  call  a 
"mulct  law"  to  punish  the  sale  of  liquor  in  viola- 
tion of  law.  Persons  engaged  in  an  illegitimate 
business  pay  fines  annually  in  advance  and  are 
immune  from  further  prosecution  during  the  year. 
The  good  people  can  not  consent  to  tolerate  the 
idea  of  licensing  what  they  consider  a  crime,  and 
so  they  have  adopted  this  mode  of  punishment. 
Is  there  any  practical  difference  between  such 
fines  and  a  license?  or  any  practical  difference 
between  the  fines  collected  in  advance  and  those 
collected  after  conviction,  except  that  the  party 
who  pays  the  fine  in  advance  for  the  privilege  of 


FALLACIES  OF  THE  LAW.  2/ 

committing  a  crime  relieves  the  state  of  the  cost 
of  convicting  him  ? 

The  object  of  punishment  is  to  prevent  crime. 
This  object  is  defeated  where  the  rich  are  merely 
fined.  If  all  such  were  certain  of  a  term  in 
prison  not  many  would  take  the  chances  of  con- 
ducting a  business  m  defiance  of  law. 

The  national  banking  and  other  corporation 
laws  confer  many  special  privileges  which  are 
very  profitable  but  can  be  taken  advantage  of 
only  by  the  wealthy. 

The  foregoing  are  but  a  few  of  the  many  spe- 
cial benefits  which  the  law  confers  upon  the  pos- 
sessors of  wealth.  Neither  wealth  nor  poverty 
should  be  a  reason  for  discrimination.  If  either 
class  is  to  be  favored,  a  law  favoring  the  poor 
would  appear  the  least  objectionable.  The  natu- 
ral advantages  of  wealth  are  so  great  that  to  add 
legal  advantages  becomes  gross  injustice. 

There  are  many  legal  discriminations  relating 
to  vocations.  The  burdens  and  benefactions  of 
the  law  apply  unevenly  to  the  various  occupa- 
tions. Common  carriers  are  required  to  exercise 
more  care  in  protecting  their  passengers  than  in 
protecting  their  employes.  One  branch  of  in- 
dustry is  shielded  from  competition  by  a  protec- 
tive tariff;  another  must  compete  even  with  the 


28  FALLACIES  OF  THE  LAW. 

government  itself.  Some  receive  bounties  and 
pensions,  while  others  are  compelled  to  pay 
licenses  and  special  taxes.  There  certainly 
should  be  a  just  reason  to  support  such  discrimi- 
nation.    In  most  cases  there  is  none. 

The  benefactions  of  a  just  government  should 
descend  as  indiscriminately  as  the  rays  of  the 
unclouded  sun  at  midday,  and  its  burdens  should 
bear  as  evenly  as  the  quiet  atmosphere  upon  the 
unruffled  surface  of  the  sea. 


CHAPTER  III. 
UNJUST   RESTRAINTS. 

The  founders  of  the  national  government 
declare  in  the  preamble  to  the  constitution  that 
its  object  is  to  secure  the  blessings  of  liberty  to 
themselves  and  their  posterity.  The  word  lib- 
erty sounds  sweet  to  the  subject  when  it  is  prom- 
ised in  the  proclamations  of  kings.  Usually, 
however,  it  means  but  little  in  such  emanations. 
Law  writers  have  defined  civil  liberty  to  mean 
the  right  of  each  subject  of  the  government  to 
act  as  he  may  desire,  providing  he  does  not  pre- 
vent the  exercise  of  a  like  right  by  others. 
This  definition  enforces  the  idea  of  equality  and 
forbids  any  member  of  the  community  to  seek 
through  the  agency  of  the  government  to  force 
upon  other  members  a  compliance  with  his  per- 
sonal desires  or  notions  of  conduct.  There  can 
be  no  liberty  where  the  subject  must  obey  the 
caprice  of  a  single  ruler,  a  democratic  govern- 
ment, or  an  organized  mob. 

None  perhaps  will  challenge  the  correctness 
of  this  statement,  but  every  attempt  to  apply  it 


30  FALLACIES  OF  THE  LAW. 

will  meet  strenuous  opposition.  We  have  be- 
come so  accustomed  to  believe  one  thing  and 
practice  another  that  we  are  shocked  when  asked 
to  put  our  theories  into  practice.  Among  the 
laws  that  plainly  violate  these  principles  of  lib- 
erty are  the  following : 

1.  Laws  forbidding  the  reasonable  use  of  cer- 
tain articles  of  diet  or  forbidding  the  sale  of  such 
articles  for  the  purpose  of  making  it  difficult  to 
get  them.  If  the  state  may  assume  to  direct  the 
individual  as  to  his  diet  and  require  him  to  con- 
sult the  statutes  in  making  his  bill  of  fare  under 
the  pretense  that  the  thing  with  which  he  desires 
to  satisfy  his  appetite  will  be  harmful  to  him  if 
he  abuses  it,  then  there  is  no  act  which  it  may 
not  at  any  time  forbid. 

2.  Laws  which  interfere  with  the  right  to 
work.  Our  natures  revolt  against  any  dictation 
from  the  government  in  this  respect.  We  in- 
stinctively feel  that  we  should  be  left  free  to 
choose  our  own  vocations  and  to  conduct  them 
as  we  see  fit.  There  are  laws  which  forbid  the 
doing  of  work  on  the  sabbath  day,  except  works 
of  necessity  and  charity,  and  thereby  industry  is 
made  a  crime  and  idleness  enforced  as  a  virtue. 
There  are  other  laws  designed  to  prevent  persons 
from  working  more  than  eight  hours  in  a  day. 


FALLACIES  OF  THE  LAW.  3 1 

These  are  of  the  same  nature.     Both  tend  to  de- 
stroy civil  liberty. 

3.  Laws  intended  to  restrain  trade.  Closely 
allied  with  the  right  to  work  is  the  right  to  deal 
with  other  workers  and  to  buy,  sell  and  exchange 
the  products  of  industry.  Persons  thus  pre- 
vented by  law  from  dealing  with  each  other,  or 
with  other  communities,  can  not  be  considered 
free.  There  are  laws  which  for  one  pretext  or 
another  interfere  with  the  freedom  of  trade.  The 
general  government  has  adopted  a  scheme  for 
raising  revenue  by  duties  on  imports.  In  some 
instances  the  duties  are  so  contrived  that  no 
revenue  is  raised,  and  the  real  intent  and  effect 
of  the  law  is  to  prohibit  importation  of  the  prod- 
ucts of  other  countries.  This  is  done  to  protect 
local  manufacturers  and  producers  from  compe- 
tition. 

The  laws  of  states  and  ordinances  of  cities 
contain  many  provisions  of  the  same  nature. 
These,  under  pretense  of  raising  revenue,  have 
made  the  cost  of  obtaining  a  license  so  great 
that  they  have  the  effect  of  preventing  many 
from  engaging  in  the  licensed  business,  and  thus 
a  few  are  enabled  to  monopolize  it. 

4.  Laws  interfering  with  the  liberty  of  con- 
tract.    The  statutes  of  many  states  and  the  so 


32  FALLACIES  OF  THE  LAW. 

called  common  law  contain  many  limitations  on 
this  right.  Statutes  forbid  contracts  for  options 
in  stocks,  grain  and  some  other  commodities,  and 
such  contracts  are  declared  void.  At  the  same 
time  an  infinite  variety  of  other  option  contracts 
are  held  valid.  Notes  and  other  contracts  exe- 
cuted on  Sunday  are  void.  All  bets  and  wager- 
ing contracts,  and  contracts  relating  to  lotteries 
and  games  of  chance,  are  made  illegal.  The 
laws  nullifying  such  contracts  are  usually  disre- 
garded. Occasionally  one  of  the  many  thousands 
pleads  the  illegality  as  an  excuse  for  refusing  to 
pay  as  he  has  promised,  and  then  the  courts  in 
the  name  of  justice  permit  him  to  repudiate  his 
contract  and  keep  the  money  he  has  received 
under  it. 

5.  Usury  laws.  In  many  states  there  are 
statute  laws  forbidding  contracts  for  the  payment 
of  more  than  a  certain  rate  of  interest.  The 
quantity  of  money  available  for  lending  at  any 
time  is  not  fixed,  but  fluctuates  like  every  other 
commodity;  the  demand  for  it  and  the  benefits 
that  may  accrue  from  its  use  vary  greatly  day  by 
day.  No  legislature  has  yet  assumed  to  fix 
the  sum  to  be  paid  for  the  use  of  a  horse  or 
other  personal  property,  or  what  should  be  paid 
for  the   rent   of  land.     Money  may  be  readily 


FALLACIES  OF  THE  LAW,  33 

converted  into  any  or  all  of  these  commodities. 
For  instance:  Fifty  dollars  will  not  produce  a 
calf,  but  it  may  be  readily  converted  into  a  cow 
that  will.  The  legislature  does  not  attempt  to 
fix  the  value  of  the  offspring  of  the  cow.  How 
then  can  it  consistently  fix  the  produce  of  the 
money?  Under  some  circumstances  an  attempt 
to  pay  three  per  cent  upon  a  vast  sum  of  money 
might  result  in  financial  ruin,  while  under  other 
circumstances  a  loan  at  three  hundred  per  cent 
would  be  a  source  of  great  profit  to  the  borrower. 
Suppose  a  man  has  occasion  to  dig,  and  it  takes 
one  dollar  to  buy  a  shovel,  would  it  not  be  better 
for  him  to  pay  three  hundred  per  cent  for  the  use 
of  the  dollar  for  a  short  time  than  to  dig  with 
his  hands  ?  No  one  can  tell  what  benefits  may 
accrue  from  the  use  of  money,  and  therefore  no 
hard  and  fast  rule  should  be  established.  All 
attempts  to  fix  an  inflexible  price  are  therefore 
unjust. 

The  usury  laws  fail  to  accomplish  the  design 
of  the  legislature.  They  are  generally  violated 
or  evaded,  and  when  they  are  not  they  cause  in- 
jury to  those  they  are  expected  to  benefit.  The 
one  who  is  unable  to  borrow  suffers  a  greater 
loss  than  the  amount  he  would  be  required  to 
pay  if  he  had  borrowed  and  paid  the  forbidden 


34  FALLACIES  OF  THE  LAW. 

interest,  and  those  who  borrow  must  borrow  of 
persons  who  are  willing  to  incur  the  risk  of  vio- 
lating the  law,  and  are  compelled  to  pay  a  much 
higher  rate  to  cover  the  risk  incurred. 

6.  Laws  relating  to  marriage  contracts.  The 
law  does  not  regard  marriage  a  divine  institution, 
or  claim  that  such  contracts  are  made  in  Heaven. 
It  considers  marriage  a  legal  agreement,  but  it 
treats  it  differently  from  other  contracts  in  this : 
It  can  not  be  rescinded  by  the  mutual  consent  of 
those  who  made  it;  nor  will  it  be  set  aside  for 
false  representations  or  fraud  that  is  sufficient 
to  avoid  other  contracts.  When  other  partner- 
ships are  dissolved,  after  paying  the  joint  debts 
the  capital  each  brought  into  the  partnership  is 
returned  and  the  remainder  is  divided  as  profits. 
Not  so  with  the  marriage  partnership.  If  dis- 
solved by  death  or  a  decree  of  court,  a  party  who 
has  contributed  nothing  whatever  to  its  financial 
prosperity  may  take  out  a  large  share  from  the 
assets  contributed  by  the  other  party.  Thus  the 
impecunious  and  crafty  who  possess  some  quali- 
ties alluring  to  the  opposite  sex  are  encouraged 
to  beguile  the  wealthy  into  the  marriage  con- 
tract and  profit  largely  in  dower  or  alimony  as 
soon  as  they  can  compass  its  dissolution.  Where 
the  bait  is  handled  skillfully  by  some  artisan  of 


FALLACIES  OF  THE  LAW.  35 

the  gentler  sex,  the  public  smile  and  excuse  it; 
but  when  the  fortune  hunter  is  a  male,  and 
falsely  wooes  to  get  control  of  money  left  by  a 
deceased  husband  or  father,  the  baseness  of  the 
transaction  is  generally  recognized.  The  differ- 
ence of  sex  does  not  change  the  character  of  the 
act.  The  law  which  makes  marriage  a  means  to 
the  attainment  of  wealth  should  bear  a  part  of 
the  blame.  The  law  encourages  marriage.  It 
makes  the  entrance  to  the  matrimonial  net  easy 
and  pleasant,  and  the  exit  exceedingly  difficult 
and  unpleasant.  So  much  does  it  favor  marriage 
that  it  will  not  permit  its  dissolution  by  mutual 
consent.  It  strives  to  perpetuate  the  relation 
between  those  who  hate  each  other.  It  consid- 
ers domestic  strife  a  suitable  atmosphere  in 
which  to  rear  children.  Should  we  be  surprised 
if  this  relation,  which  presents  so  fruitful  a  field 
for  fraud  in  its  procurement,  and  is  so  hedged 
about  with  coercive  statutes  to  compel  its  con- 
tinuance, ordinarily  becomes  a  most  prolific 
source  of  cruelty  and  skulking  hypocrisy? 
Why  should  the  marriage  relation  on  any  other 
basis  than  mutual  attraction  be  desirable  in  law  ? 
Where  the  parties  so  hate  each  other  as  mutually 
to  seek  dissolution,  why  should  not  the  law  per- 
mit them  to  dissolve  it  without  requiring  one  of 


36  FALLACIES  OF  THE  LAW. 

them  to  commit  a  crime  as  a  ground  for  the  dis- 
solution ? 

7.  Concealed  weapons.  The  laws  in  many 
parts  of  the  United  States  make  it  a  crime  to 
carry  weapons  concealed.  One  may  go  about 
with  an  arsenal — guns,  dirks  and  bowie-knives — 
in  his  belt,  provided  they  are  visible,  but  if  he 
carries  a  small  revolver  in  his  pocket  or  valise 
he  violates  the  law.  The  effect  of  this  statute 
is  to  disarm  those  who  are  law-abiding  and 
respectable.  Only  ruffians  carry  weapons  un- 
concealed. Thieves,  bullies  and  hold-up  men 
pay  no  attention  to  the  law,  and  the  decent 
people  who  obey  it  go  unprepared  to  resist  as- 
sault from  highwaymen,  burglars  and  savage 
dogs.  A  small  boy  with  a  pistol  is  thus  made 
able  to  rob  a  whole  train  load  of  passengers  who 
are  thus  disarmed,  and  a  dog  may  put  hundreds 
of  people  to  flight. 

It  may  be  urged  that  if  the  law  permitted  all 
persons  to  carry  weapons  many  would  abuse  the 
privilege  and  yield  to  a  temptation  to  use  them 
improperly.  If  this  be  granted  it  does  not  jus- 
tify the  law,  because  the  law  forbids  the  carrying 
of  concealed  weapons  only  and  permits  the  carry- 
ing of  weapons  that  are  not  concealed.  Is  there 
not  as  great  danger  of  yielding  to  impulse  in  one 


FALLACIES  OF  THE  LAW.         37 

case  as  in  the  other?  Those  most  likely  to  use 
weapons  pay  no  attention  to  the  law.  The  fact 
that  one  person  may  abuse  this  liberty  can  not  be 
a  valid  reason  for  enslaving  another.  A  free  man 
should  have  the  right  to  carry  weapons  in  any 
way  he  desires.  He  may  not  choose  to  do  so. 
He  may  think  that  such  weapons  actually  in- 
crease his  danger  and  prefer  to  go  about  without 
any  means  of  protection.  If  so,  it  should  be  his 
privilege.  The  right  to  defend  life,  liberty  and 
property  should  imply  a  right  to  carry  weapons 
for  that  purpose;  to  deny  such  a  right  would  be 
like  allowing  to  the  farmer  the  right  to  till  the 
soil  and  then  forbidding  him  the  use  of  the  most 
effective  implements  for  that  purpose.  The  abil- 
ity of  a  nation  to  defend  itself  depends  upon  the 
capacity  of  its  people  to  use  weapons  in  self- 
defense.  When  it  thus  disarms  its  people  it  seri- 
ously depletes  its  own  strength. 

The  foregoing  illustrations  are  but  a  few  of  the 
many  laws  that  seriously  conflict  with  the  doctrine 
of  civil  liberty  as  defined  in  the  opening  of  this 
chapter.  An  attempt  to  repeal  any  one  of  them 
would  meet  with  strenuous  opposition.  The  claim 
would  be  made  for  all  of  them  that  they  in  some 
way  tend  to  promote  the  health,  safety  or  morals 
of  the  public.    This  broad  claim  is  elastic  enough 


38  FALLACIES  OF  THE  LAW. 

to  cover  any  edict  which  a  tyrant  may  devise  to 
enslave  a  people. 

All  enjoy  fine  phrases  in  praise  of  liberty,  but 
only  a  few  are  really  in  favor  of  it.  A  consider- 
able portion  prefer  to  be  led  and  controlled.  They 
seek  a  master  who  shall  think  for  them  and  rule 
over  them  and  allow  them  to  worship  him. 

Of  those  who  desire  liberty  for  themselves  the 
larger  portion  are  not  willing  to  accord  it  to  oth- 
ers. They  wish  to  use  the  government  to  enforce 
upon  the  entire  community  their  particular  no- 
tions of  conduct.  "Whatsoever  ye  would  that 
others  should  do  unto  you,  do  ye  even  so  unto 
them"  is  the  golden  rule  of  Jesus.  "Do  not  unto 
others  what  you  would  not  have  others  do  unto 
you"  was  the  injunction  of  Confucius.  Both  are 
in  accord  with  civil  liberty  as  above  defined,  but 
they  are  expressive  of  higher  ideas  of  justice  than 
most  people  are  willing  to  practice.  A  great 
people  must  arise,  if  at  all,  by  the  observance  of 
these  principles.  The  instinct  of  selfishness  must 
be  curbed.  The  desire  to  manifest  one's  own  ego 
by  suppressing  others  must  be  eliminated,  and 
each  person  allowed  and  encouraged  to  develop 
his  latent  abilities  along  the  line  of  his  own  de- 
sires. To  the  extent  that  men  and  women  have 
been  able  to  do  this  have  they  been  made  strong. 


FALLACIES  OF  THE  LAW.         39 

The  real  strength  of  a  nation  depends  more 
upon  the  development  of  its  people  than  on  its 
fighting  appliances,  and  this  development  de- 
pends upon  the  extent  each  individual  has  been 
encouraged  by  just  and  liberal  laws.  Thus  laws 
infringing  upon  civil  liberty  are  obstructions  in 
the  path  of  progress;  but  they  have  not  produced 
a  tithe  of  the  injury  they  would  have  caused  had 
they  been  strictly  enforced.  The  imagination 
can  not  picture  the  disaster  that  would  follow 
such  enforcement.  There  is  perhaps  no  member 
of  the  community  who  does  not  violate  some  of 
them.  Occasionally  a  spasm  occurs  in  a  particu- 
lar cult  or  sect  and  a  series  of  prosecutions  is 
started,  but  it  soon  subsides.  There  is  neither 
zeal  enough  in  the  people  to  enforce  nor  energy 
sufficient  to  repeal  such  laws,  so  they  remain  to 
swell  the  bulk  of  statutes  and  to  become  sources 
of  fraud  and  extortion  and  instrimients  of  private 
malice. 


CHAPTER  IV. 

UNJUST    DUTIES. 

I.  Duty  to  exercise  ordinary  care.  A  large 
part  of  all  the  litigation  in  the  cities  of  the  United 
States  are  suits  to  recover  damages  for  injuries 
to  persons  and  property  on  the  ground  that  they 
were  caused  by  the  negligence  of  the  defendant. 
In  some  the  negligence  consists  in  failing  to  keep 
a  contract  either  in  express  words  or  implied  by 
law.  In  others  it  consists  in  a  failure  to  dis- 
charge a  duty  expressly  commanded  by  the  law. 
But  in  most  cases  the  negligence  consists  in  the 
failure  to  exercise  what  is  called  "ordinary  care" 
in  relations  where  the  law  makes  it  the  duty  to 
exercise  such  care. 

What  is  "ordinary  care"?  It  is  often  defined 
to  be  such  care  as  an  ordinarily  careful  and  pru- 
dent person  would  exercise  under  like  circum- 
stances in  relation  to  his  own  affairs.  But  how 
can  the  judge  or  jury  identify  the  ordinarily  care- 
ful and  prudent  person  or  prophesy  what  he 
would  do  under  like  circumstances  ?  Both  tasks 
are  impossible  to  discharge  with  any  approach  to 


FALLACIES  OF  THE  LAW.  41 

accuracy.  The  product  of  efforts  in  this  direc- 
tion are  mere  guesses  depending  upon  the  intelli- 
gence, experience  and  the  state  of  feelings  of  the 
person  who  does  the  guessing.  The  jury  thus 
put  to  sea  without  chart  or  compass  are  usually 
guided  principally  by  their  sympathies,  and  find 
a  verdict  for  the  plaintiff.  This  rule  is  not  just. 
Why  should  any  person  be  under  obligation 
to  exercise  ordinary  care?  Care  embraces  two 
elements ;  /.  e. ,  a  perception  or  foresight  of  dan- 
ger, and  efforts  to  avoid  it.  The  first  is  the  rea- 
son for  the  second.  Without  the  perception  the 
efforts  would  be  unreasonable.  The  exercise  of 
care  is  therefore  an  act  of  mentality,  and  to 
require  a  person  to  exercise  the  same  degree  of 
care  as  an  ordinarily  careful  and  prudent  person 
clearly  requires  him  to  possess  the  mental  ca- 
pacity of  an  ordinarily  careful  and  prudent  per- 
son. As  well  require  him  to  be  as  tall  or  as  fat 
as  an  ordinary  person,  or  punish  him  because  he 
falls  short  of  the  ordinary  in  any  other  physical 
or  mental  quality.  Thus  if  one  is  not  ordinarily 
careful  and  prudent  and  thereby  another  is  in- 
jured, the  person  thus  lacking  must  make  good 
the  loss  unless  the  injured  person  is  also  lacking 
in  the  same  respect.  Is  it  just  thus  to  make  a 
person   suffer   loss  for  what   he  can  not  help? 


42  FALLACIES  OF  THE  LAW. 

Whenever  the  shortcomings  of  the  defendant  are 
intentional,  as  where  he  has  intended  to  subject 
the  injured  party  to  unnecessary  danger  and  has 
willfully  failed  to  take  necessary  steps  to  avoid  it, 
a  good  reason  exists  for  making  him  pay  the 
losses,  but  where  the  injury  is  the  consequence 
of  a  mere  error  of  judgment  or  lack  of  foresight 
it  is  a  mere  accident. 

2.  Duty  to  exercise  ordinary  skill  and  dili- 
gence in  a  professional  capacity.  The  law  makes 
it  the  duty  of  persons  who  practice  professions 
requiring  special  skill  to  exercise  the  skill  and 
care  ordinarily  exercised  by  members  of  such 
professions,  and  if  they  fail  to  do  so  they  are 
made  responsible  for  all  losses  caused  by  such 
failure.  All  heretofore  written  on  the  duty  to 
exercise  ordinary  care  applies  here  with  emphasis. 
It  is  even  more  difficult  to  tell  what  skill  and  dili- 
gence are  ordinarily  exercised  by  professional 
men  of  a  certain  calling  than  it  is  to  tell  what 
care  is  ordinarily  exercised  by  persons  generally. 
The  judge  and  jury  are  without  any  criterion  for 
an  accurate  judgment.  Seldom  has  the  judge 
any  special  knowledge  of  the  skill  or  care  em- 
ployed in  any  profession  other  than  his  own,  and 
the  jury  are  destitute  of  any  definite  knowledge. 
How  can  either  of  them  form  an  intelligent  opin- 


FALLACIES  OF  THE  LAW.         43 

ion  on  the  question  whether  the  defendant  in  a 
given  case  exercised  the  skill  and  care  that  an 
ordinary  member  of  his  profession  would  have 
exercised  under  like  circumstances  ? 

Even  if  capable  of  an  accurate  application, 
this  rule  would  be  exceedingly  unjust  to  the  pro- 
fessional man.  It  makes  him  suffer  losses  be- 
cause he  lacks  the  foresight  or  expertness  of 
others.  It  is  sought  to  justify  this  law  by  claim- 
ing that  when  a  man  undertakes  a  task  requiring 
professional  skill  and  learning  he  represents  and 
impliedly  contracts  that  he  possesses  such  skill 
and  learning,  and  if  he  has  not  his  representa- 
tions are  false  and  his  contract  broken,  and  he 
should  suffer  the  losses  caused  thereby.  This 
claim  is  not  correct.  No  one  can  know  abso- 
lutely what  skill  or  learning  is  ordinarily  pos- 
sessed by  members  of  a  profession,  and  therefore 
whether  a  certain  member  possesses  it  or  not 
must  ever  be  a  mere  opinion.  An  opinion  can 
never  be  the  foundation  of  a  claim  for  damages 
for  false  representation,  nor  can  it  be  a  basis  for 
a  claim  for  a  breach  of  contract,  because  of  the 
difficulty  in  definitely  proving  a  breach. 

If  it  be  conceded  that  a  physician,  for  instance, 
when  he  undertakes  to  treat  a  patient,  contracts 
that  he  possesses  the  learning  and  skill  ordinarily 


44  FALLACIES  OF  THE  LAW. 

possessed  by  physicians,  who  shall  prove  that  he 
has  not,  and  how  can  it  be  proven  ?  Must  it  not 
first  be  proven  what  skill  and  learning  at  least 
the  majority  of  physicians  possess,  before  it  can 
be  shown  that  the  physician  in  controversy  lacks 
in  either?  It  is  not  enough  to  show  that  he  is 
not  as  smart  as  A  or  B,  or  perhaps  ten  or  a  dozen 
members  of  the  profession  that  may  be  selected. 
To  do  even  this  would  be  a  prodigious  task ;  but 
more  must  be  done :  it  is  necessary  to  bring  the 
whole  profession  into  review  and  show  that  the 
physician  whose  learning  and  skill  are  in  question 
exercised  less  learning  and  skill  than  the  average. 
This  no  one  can  do  with  any  degree  of  accuracy 
in  a  "malpractice"  case. 

No  such  contract  is  ever  entered  into,  or  im- 
plied in  fact,  by  the  employment  of  a  physician 
or  lawyer.  The  employe  merely  holds  himself  out 
as  lawfully  authorized  and  licensed  to  practice 
the  profession,  and  all  he  can  be  justly  supposed 
to  promise  is  that  he  will  act  in  good  faith  and  do 
the  best  he  knows  how.  If  he  acts  in  good  faith, 
there  is  no  more  reason  why  he  should  suffer  be- 
cause of  errors  in  judgment  than  there  would  be 
for  making  a  judge  responsible  in  damages  because 
he  reached  a  decision  different  from  the  one  that 
a  court  or  jury  might  believe  would  ordinarily  be 


FALLACIES  OF  THE  LAW.  45 

reached  under  the  same  circumstances.  Mem- 
bers of  professions,  of  course,  should  be  made 
responsible  for  false  pretenses  and  frauds  prac- 
ticed, and  should  be  held  responsible  for  inten- 
tional neglect  or  disregard  of  duty,  but  they 
should  not  be  made  responsible  for  a  mere  lack 
of  mental  capacity,  or  of  knowledge  and  skill, 
where  they  have  not  intentionally  practiced  de- 
ception upon  their  employers. 

3.  Contributory  negligence.  Intimately  con- 
nected with  the  obligation  to  exercise  ordinary 
care  is  the  doctrine  of  contributory  negligence," 
and  it  applies  in  this  way:  The  person  who  sues 
for  damages  for  a  personal  injury  which  he  has 
sustained  on  account  of  the  negligence  of  another 
must  prove  that  at  the  time  he  was  injured  he 
was  exercising  ordinary  care  for  his  own  safety. 
If  his  failure  to  be  ordinarily  careful  contributed 
directly  to  cause  his  injury  he  can  not  recover 
anything.  Thus  the  failure  to  possess  ordinary 
intelligence  and  foresight  practically  outlaws  the 
injured  party.  He  may  have  been  disabled  for 
life  by  the  recklessness  of  another,  but  the  law  is 
deaf  to  his  complaints.  If  he  is  below  the  ordi- 
nary he  is  entitled  to  no  protection.  Is  not  this 
doctrine  positively  shocking  to  one's  sense  of 
justice?     Is  it  not  clearly  illogical?     If  failure 


46  FALLACIES  OF  THE  LAW. 

to  exercise  ordinary  care  is  an  actionable  wrong, 
and  both  parties  are  guilty,  why  should  the  in- 
jured party  be  made  to  bear  all  the  loss  ?  If  the 
fault  causing  the  loss  is  equal,  why  should  not 
the  consequent  loss  be  equally  divided  ? 

4.  Comparative  negligence.  To  mitigate  the 
manifest  injustice  of  the  rule  of  contributory  neg- 
lig^ence  the  doctrine  of  "comparative  negligence" 
was  invented  and  is  still  applied  in  a  few  juris- 
dictions. According  to  this  doctrine,  where  both 
parties  are  guilty  of  negligence  causing  the  injury 
the  jury  are  to  compare  their  negligence,  and  if 
the  defendant's  negligence  is  greater  than  the 
plaintiff's  the  injured  plaintiff  may  recover.  If  it 
were  possible  to  prove  with  any  degree  of  accu- 
racy the  fact  of  negligence,  then  it  might  be  pos- 
sible to  compare  the  negligence  of  each  party 
and  we  might  have  a  rule  by  which  each  party 
would  be  made  to  suffer  in  proportion  to  his  stu- 
pidity. This  would  not  be  so  illogical  as  the 
doctrine  of  "contributory  negligence,"  but  it 
would  be  very  bad. 

5.  Duty  to  exercise  ordinary  care  in  dealing 
with  a  swindler.  Bearing  some  relation  to  the 
doctrine  of  "contributory  negligence"  is  the  rule 
enforced  in  most  jurisdictions  requiring  a  person 
who  seeks  relief  for  a  fraud  practiced  on  him  to 


FALLACIES  OF  THE  LAW.  47 

show  that  he  exercised  ordinary  care  to  avoid 
being  defrauded.  If  he  has  relied  upon  the  false 
representations  of  another  without  exercising 
ordinary  care  to  ascertain  their  truthfulness,  or 
has  in  any  other  way  been  imposed  upon,  because 
he  did  not  possess  the  usual  foresight  of  ordina- 
rily careful  and  prudent  persons  the  law  will 
afford  him  no  redress.  It  says  to  the  swindler, 
'Fools  are  your  legitimate  prey;  you  may  cheat 
the  unwise  and  imprudent  wherever  you  can;  but 
if  you  are  smart  enough  to  outwit  the  wise  and 
prudent  we  will  set  aside  the  transaction  or  make 
you  responsible  in  damage  for  the  fraud  you  com- 
mit."    Can  anything  be  worse  than  this  ? 

A  just  government  should  make  haste  to  pun- 
ish fraud  wherever  practiced,  and  if  it  made  any 
discrimination  between  the  wise  and  the  unwise 
in  granting  relief,  that  discrimination  should 
favor  those  who  have  been  poorly  provided  by 
nature  with  the  capacity  to  protect  themselves 
from  fraudulent  devices. 


CHAPTER  V. 

UNJUST   DUTIES  —  Continued. 

6.  Duty  to  exercise  the  highest  degree  of 
care.  There  are  some  relations  in  which  the 
law  implies  an  obligation  to  exercise  the  highest 
degree  of  care  consistent  with  the  conduct  of  the 
business.  Common  carriers  are  required  to  ej^er- 
cise  this  degree  of  care  for  the  protection  of  their 
passengers,  and  innkeepers  are  also  required  to 
exercise  it  for  the  protection  of  their  guests.  All 
objections  heretofore  made  against  the  rule  re- 
quiring ordinary  care  apply  with  equal  force  to 
any  other  degree.  No  judge  or  jury  can  deter- 
mine accurately  when  such  care  has  been  exer- 
cised. Why  should  the  carriers  of  passengers  or 
the  keepers  of  inns  be  required  to  have  more 
intelligence  than  those  who  operate  factories  or 
mines  or  construct  buildings  ?  Why  should  a 
passenger  or  guest  receive  any  greater  protection 
than  the  employe  in  a  mine  or  a  factory  or  on  a 
building  ?  The  usual  answer  is  that  the  passen- 
ger or  guest  pays  for  safety  and  the  carrier  and 
innkeeper  impliedly  agree  to  give  him  a  safe 


FALLACIES  OF  THE  LAW.  49 

carriage  and  entertainment.  Then  why  not  make 
them  keep  the  contract  ?  In  no  other  instance 
can  a  person  excuse  himself  for  failure  to  keep 
his  contract  by  showing  he  exercised  the  highest 
degree  of  care  consistent  with  the  practical  oper- 
ation of  his  business.  This  is  not  allowed  as  an 
excuse  for  a  failure  to  comply  with  a  contract  to 
pay  money  or  deliver  property  or  construct  a 
building.  Where  other  contracts  are  broken  the 
law  awards  compensation  for  the  losses  caused 
by  the  breach,  without  regard  to  the  care  exer- 
cised in  efforts  to  perform  them. 

7.  Duty  to  exercise  the  least  degree  of  care. 
In  some  relations  the  law  requires  the  exercise 
of  only  a  slight  degree  of  care  and  allows  a 
recovery  for  only  what  is  called  gross  negligence. 
Thus  when  one  person  without  compensation 
undertakes  to  render  service  for  another,  he  is 
required  to  exercise  only  slight  care.  Here  the 
same  objections  exist  as  to  the  other  degrees  of 
care ;  for  it  is  just  as  difficult  to  determine  what 
is  slight  care  as  any  other  kind.  There  is  no 
definite  measure  for  it  and  no  certain  test  to 
identify  gross  negligence  or  distinguish  it  from 
any  other  kind.  This  rule  is  also  unjust.  Why 
should  a  person  who  has  assumed  without  any 
reward  or  hope  of  advantage  to  render  a  service 


50         FALLACIES  OF  THE  LAW, 

to  another  be  held  to  a  higher  obligation  than 
good  faith  and  honest  intentions  ?  No  consider- 
ation is  paid  for  the  service  and  there  is  nothing 
to  compensate  for  assuming  a  risk.  Those  who 
undertake  tasks  for  hire  may  be  supposed  to  con- 
sider the  risk  in  fixing  the  price ;  but  those  who 
undertake  gratuitous  services  out  of  kindness  or 
generosity  should  not  be  required  to  do  more 
than  they  are  able  to  do  by  acting  in  good  faith. 

The  word  care  in  common  parlance  suggests 
an  action  of  the  will,  and  perhaps  the  obligation 
to  exercise  it  originally  meant  nothing  more  than 
an  effort  to  do  the  act  necessary.  But  in  the 
process  of  refinements  natural  in  legal  discus- 
sions the  word  has  come  to  mean  much  more  than 
a  desire  or  an  effort.  It  now  includes  foresight, 
intelligence  and  reasoning  capacity  as  well,  and 
thereby  has  come  into  existence  the  unjust  doc- 
trine which  we  have  herein  combated. 

8.  A  substitute  suggested.  To  the  foregoing 
criticism  of  the  law  of  negligence  many  objections 
which  will  be  made  can  not  be  anticipated  and 
answered  herein.  All  will  admit  the  present  law 
to  be  imperfect.  Some  will,  however,  insist  that 
this  law  affords  a  kind  of  necessary  relief  and  it 
behooves  the  critic  to  offer  something  better  in  its 
place.     The  subject  affects  so  many  relations  in 


FALLACIES  OF  THE  LAW.         5 1 

life  that  it  is  difl&cult  to  devise  any  system  that 
will  be  entirely  just  and  logical  and  afford  the 
redress  needed.  There  are,  however,  some  prin- 
ciples that  inhere  in  the  nature  of  the  subject,  and 
a  consideration  of  these  may  afford  illumination. 

In  the  association  of  members  of  a  community 
with  each  other  there  are  five  relations  which  are 
conceivable  as  creating  obligations : 

First.  A  contractual  relation,  where  one  is 
under  obligation  to  another  because  he  has  bound 
himself  by  a  contract,  either  in  express  words 
or  by  reasonable  implication,  to  do  or  not  to  do 
some  act.  Here  the  obligation  is  absolute,  and 
it  should  not  be  discharged  without  a  perform- 
ance or  the  paying  of  something  that  is  equiva- 
lent to  such  performance. 

Second.  A  relation  voluntarily  assumed,  where 
one  person  must  rely  upon  another  to  protect  him 
from  the  dangers  necessarily  incident  to  the  rela- 
tion or  likely  to  exist  or  arise  out  of  the  relation. 
Here  the  law  should  create  an  obligation  on  the 
part  of  the  one  relied  upon  to  discharge  the 
trust  thus  imposed  by  this  relation,  and  the  only 
excuse  that  ought  to  avail  should  be  that  some 
force  beyond  his  control  has  intervened  and  made 
it  impossible  for  the  party  to  discharge  his  obli- 
gation. 


52  FALLACIES  OF  THE  LAW. 

Third.  Where  the  relation  is  such  that  both 
parties  are  relied  upon  to  afford  protection  for 
themselves  and  each  other,  then  the  only  obliga- 
tion that  naturally  arises  is  that  each  should  act 
in  good  faith  toward  the  other,  giving  him  the 
same  care  that  he  bestows  upon  himself.  If 
under  such  circumstances  an  injury  occurs  with- 
out either  party  acting  in  bad  faith,  there  is  no 
foundation  for  asking  either  to  bear  the  loss  of 
the  other,  unless  the  loss  can  be  considered  a  part 
of  the  necessary  hazards  of  a  joint  undertaking. 
If  they  are  thus  associated  together,  the  actual 
loss  suffered  without  the  fault  of  either,  caused 
by  accidents  or  defective  appliances,  should  be 
considered  a  part  of  the  necessary  expenses  of 
the  business  and  be  shared  equally. 

Fourth.  Where  the  parties  are  acting  entirely 
independently  of  each  other,  each  using  his  own 
person  and  property  for  his  own  purposes.  In 
such  a  relation  each  owes  to  the  other  the  obliga- 
tion not  to  act  or  allow  his  property  to  be  used  so 
as  to  cause  injury  to  the  other,  This  obligation 
should  be  absolute,  and  if  either  injures  the  other 
by  the  use  he  makes  or  permits  of  his  person  or 
property,  and  thereby  causes  a  pecuniary  loss, 
he  should  make  good  that  loss,  whether  he  has 
been  careful  or  careless  in  causing  it. 


FALLACIES  OF  THE  LAW.         53 

Fifth.  Where  there  are  no  contractual  rela- 
tions existing  between  the  parties,  and  each  one 
is  proceeding  independently,  attending  to  his  own 
business,  having  an  equal  right  to  the  locality, 
and  a  collision  occurs  without  any  willful  or  in- 
tentional disregard  by  either  of  the  rights  of  the 
other,  there  is  no  reason  why  either  should  be 
entitled  to  require  the  other  to  share  his  loss. 
If,  however,  one  party  has  a  superior  right  to 
occupy  the  place  where  the  injury  occurred,  or  if 
one  has  a  lawful  right  to  be  there  and  the  other 
has  not,  the  one  wrongfully  there  should  bear  the 
loss. 

It  is  believed  the  foregoing  principles  will 
apply  to  most,  if  not  all,  the  obligations  which 
naturally  arise  in  a  community  on  account  of  the 
relations  of  its  members  to  each  other.  Other 
relations  may  arise  because  of  those  which  the 
members  sustain  to  the  government.  Such  are 
the  obligations  to  share  in  governmental  ex- 
penses, and  to  obey  and  assist  in  the  enforcement 
of  its  laws.  Where  there  has  been  a  violation  of 
such  obligations  and  one  member  of  the  commu- 
nity has  thereby  suffered  a  loss  he  should  have 
an  absolute  right  to  compensation  from  the  per- 
son in  default. 

If  the  views  above  expressed  are  sound,  the 


54         FALLACIES  OF  THE  LAW. 

whole  doctrine  of  actionable  negligence  as  now 
found  in  the  law,  with  its  accompanying  mirage 
of  contributory  negligence,  should  become  obso- 
lete, and  in  the  place  of  its  windings  and  twist- 
ings,  its  vagueness  and  uncertainty,  we  should 
substitute  a  logical  and  definite  system  that  will 
afford  a  complete  redress  for  the  breach  of  easily 
understood  obligations. 

9.  Duty  of  a  husband  to  pay  all  debts  con- 
tracted by  his  wife  before  marriage,  and  all  dam- 
ages caused  by  her  either  before  or  after  marriage. 
By  the  common  law,  in  force  in  most  of  the 
states,  where  not  changed  by  statute,  the  hus- 
band is  answerable  for  all  debts  existing  against 
his  wife  at  the  time  of  fnarriage,  and  for  all  dam- 
ages she  has  caused  to  others  by  her  wrongful 
acts  prior  to  her  marriage,  and  all  that  she  may 
cause  while  the  marriage  relation  continues. 
This  rule  is  based  upon  the  fiction  that  by  the 
marriage  they  become  one,  and  he  is  the  one, 
and  all  the  incumbrances  that  have  previously 
attached  to  her  are  merged  in  him  by  the  union. 
All  slanders,  assaults  or  sins  of  omission  or  com- 
mission which  may  have  been  charged  to  her  be- 
fore marriage  or  may  be  thereafter  are  saddled 
upon  him,  and  he  must  make  a  sort  of  vicarious 
atonement  in  currency  to  any  one  who  has  suf- 


FALLACIES  OF  THE  LAW.  55 

fered  damages  on  account  of  them.  The  injus- 
tice of  this  duty  is  obvious  and  needs  no  argu- 
ment. 

lo.  Duty  to  assist  the  sheriff  and  constable. 
At  common  law  a  sheriff  or  constable  could  call 
such  a  number  of  men  as  were  necessary  to  assist 
him  in  the  execution  of  a  writ  or  the  preservation 
of  the  peace,  and  every  person  over  the  age  of 
fifteen,  not  disabled  by  age  or  decrepitude  from 
doing  so,  was  required  to  obey,  and  was  liable 
to  be  punished  by  fine  and  imprisonment  if  he 
failed.  This  law  makes  no  provision  for  com- 
pensating the  person  thus  assisting  for  time  lost 
or  injuries  received,  and  gives  these  officers  ar- 
bitrary power  to  call  persons  from  their  homes 
and  occupations  at  any  time,  day  or  night.  All 
liable  to  such  call  may  be  subjected  to  the  great- 
est dangers  in  enforcing  a  writ  or  suppressing  a 
mob  or  riot  whenever  in  the  judgment  of  either 
of  these  officers  such  services  are  necessary. 
Perhaps  there  was  in  England  and  in  this  country 
a  time  when  it  was  proper  to  bestow  such  power 
upon  the  sheriff  and  constable  and  impose  such 
burdens  upon  subjects,  but  surely  that  time  has 
passed.  These  officers  should  be  provided  by 
law  with  suitable  assistance  for  serving  writs  and 
suppressing  mobs,  and  in  cases  of  emergency  the 


56'        FALLACIES  OF  THE  LAW. 

military  arm  of  the  government  should  aid  them. 
Men  in  the  ordinary  walks  of  civil  life  are  not 
adapted  to  perform  such  service,  and  if  sum- 
moned would  usually  prove  of  but  slight  assist- 
ance to  the  officer.  Our  laws  tend  to  disarm  the 
great  body  of  the  people  and  prevent  the  use  of 
weapons.  They  discourage  physical  conflicts  and 
teach  all  to  rely  upon  trained  men  to  execute  the 
behests  of  the  law,  and  it  is  certainly  unjust  to 
require  private  persons  to  engage  in  such  con- 
flicts at  the  request  of  the  sheriff  or  constable. 
This  law  is  tolerated  because  it  is  not  enforced. 
If  one  of  these  officers  would  telephone  a  few 
preachers,  doctors,  lawyers  and  merchants  to  aid 
in  suppressing  a  mob,  and  attempt  to  punish 
them  for  a  failure  to  respond,  it  is  probable  the 
law  would  soon  be  eliminated. 

II.  The  duty  to  assist  in  military  operations. 
Every  government  has  assumed  the  right  to 
compel  its  subjects  to  assist  in  any  military  oper- 
ation in  which  it  may  be  engaged.  A  sentiment 
of  patriotism  generally  prevails  and  it  is  consid- 
ered dishonorable  to  refuse  such  assistance.  It 
has  been  said  "the  patriot  asks  no  omen  but  his 
country's  cause."  Where  it  is  believed  that  the 
government  derives  its  power  from  divine  sources 
every   subject  must    serve    its   behests  without 


FALLACIES  OF  THE  LAW,  57 

question.  But  our  government  is  declared  to 
derive  its  just  power  from  the  consent  of  the 
governed  and  to  exist  for  their  benefit.  Under 
such  circumstances,  and  to  be  consistent  with 
this  fundamental  theory,  a  different  doctrine  must 
prevail.  To  what  extent  may  such  a  government 
justly  compel  its  subjects  by  law  to  assist  in  its 
military  operations?  The  implied  contract  by 
which  the  members  of  the  community  are  as- 
sumed to  have  organized  to  protect  their  lives, 
liberty  and  property  may  be  said  to  put  each 
member  under  obligation  to  share  his  just  pro- 
portion of  the  necessary  expense  and  services 
required  to  sustain  that  government  in  time  of 
either  war  or  peace.  If  at  any  time  it  becomes 
necessary  to  take  up  arms  in  defense  of  the  gov- 
ernment, or  to  train  preparatory  for  that  purpose, 
each  should  bear  his  share  according  to  his  ability 
and  means.  To  this,  however,  there  should  be 
a  limit,  or  else  the  citizen  in  becoming  a  subject 
of  the  government  may  lose  his  liberty  by  the  war 
schemes  of  its  managers.  If  a  war  is  not  in  fact 
necessary  to  protect  the  government,  its  citizens 
or  their  property,  and  it  is  not  in  its  nature  de- 
fensive, is  it  a  just  law  that  compels  any  subject 
to  support  it  by  money  or  personal  service  ?  All 
governments  punish  murder  as  one  of  the  great- 


58  FALLACIES  OF  THE  LAW. 

est  of  crimes.  Human  life  is  never  permitted  to 
be  taken  by  a  subject  except  when  necessary  in 
defense  of  life,  liberty  and  property.  The  same 
rule  of  justice  which  does  not  allow  subjects  to 
take  human  life  except  for  defensive  purposes 
must  apply  to  all  subjects  and  in  its  logical  con- 
clusion forbid  all  from  engaging  in  an  unneces- 
sary war. 

It  is  remarkable  that  the  constitution  of  the 
United  States  gave  to  Congress  the  unlimited 
power  to  declare  war.  It  should  have  restricted 
that  power  to  wars  necessary  for  the  common 
defense.  War  waged  to  defend  the  government 
and  protect  the  rights  of  its  people  against  unjust 
assaults  is  holy,  and  every  dollar  spent  and  every 
drop  of  blood  spilt  is  consecrated  to  the  sacred 
cause  of  justice.  But  war  inspired  by  greed  or 
by  lust  for  power,  or  to  assist  some  popular  idol 
in  obtaining  military  glory,  is  the  worst  of  crimes. 
Common  murder  compared  with  it  becomes  in- 
significant. Lands  and  cities  are  laid  waste, 
multitudes  of  human  lives  are  destroyed,  and 
every  horrible  crime  accompanies  its  march  or 
follows  in  its  wake.  Diseases  the  most  pestilen- 
tial and  loathsome  lurk  about  its  camps  and  rot 
the  limbs  of  brave  men  in  both  armies.  Birds  of 
prey,  human  and  inhuman,  hover  about  the  field 


FALLACIES  OF  THE  LAW,         59 

to  rob  or  devour  the  slain.  Many  of  the  legions 
which  war's  frightful  machinery  has  left  alive 
survive  only  as  miserable  cripples  or  the  victims 
of  incurable  maladies  until  they  finish  a  living 
death  in  an  untimely  grave.  The  terrible  deluge 
of  agony  brought  upon  the  participants  in  the 
wicked  enterprise  continues  to  vex  the  inhabit- 
ants of  both  nations  for  centuries  after  peace  has 
been  declared.  Surely  intelligent  people  should 
discriminate  between  a  just  and  an  unjust  war. 
They  should  wreathe  with  bays  of  undying  glory 
the  memories  of  those  who  imperil  or  sacrifice 
their  lives  for  the  cause  of  justice,  and  execrate 
and  teach  their  children  to  execrate  forever  the 
names  of  the  promoters  of  venal  wars. 


CHAPTER  VI. 
FALLACIES    OF    GENERAL    LAWS. 

I.  Laws  for  collecting  taxes.  In  many  states 
the  laws  provide  for  selling  real  estate  to  col- 
lect the  taxes  levied  thereon.  These  laws  allow 
to  the  owner  several  years  in  which  to  redeem 
from  the  tax  sale,  and  in  case  of  redemption  pro- 
vide for  rates  of  interest  much  higher  than  the 
legal  rate  of  the  state,  and  provide  for  setting 
aside  sales  for  collusion  among  bidders  or  for  a 
failure  to  observe  the  precise  requirements  of  the 
law  in  advertising  and  selling  the  property.  Be- 
cause of  the  redemption  statutes  and  the  many 
grounds  that  may  avail  to  set  aside  such  sales, 
only  a  few  persons  attend  them  as  bidders,  and 
those  who  do  attend  are  attracted  thereto  by  the 
large  profits  that  they  hope  to  realize. 

The  lands  so  sold  are  usually  bid  in  for  a 
small  fraction  of  their  value,  and  the  rates  of 
interest  and  the  penalties  required  to  be  paid 
in  the  event  of  a  redemption  are  so  exorbitant, 
and  when  a  deed  is  acquired  it  is  obtained  for  so 
insignificant  a  sum  in  proportion  to  the  value  of 


FALLACIES  OF  THE  LAW.  6 1 

the  property  conveyed,  that  the  whole  proceed- 
ing shocks  the  moral  sensibility  of  every  lover  of 
justice. 

It  is  strange  that  a  government  which  re- 
quires its  subjects  to  be  just  with  each  other, 
and  provides  for  setting  aside  ordinary  sales  as 
fraudulent  where  the  consideration  is  grossly 
inadequate,  has  no  scruples  against  collecting  its 
own  dues  by  sacrificing  the  property  of  its  people. 

Of  course  all  should  pay  their  taxes,  and  often 
the  failure  to  pay  is  due  to  neglect,  but  is  the 
government  justified  in  punishing  neglect  by  so 
heavy  penalties  ?  If  one  member  of  the  commu- 
nity fails  to  pay  his  debt  to  another  the  law  fixes 
the  penalty  of  that  neglect  by  requiring  him  to 
pay  a  reasonable  rate  of  interest,  such  as  five  or 
six  per  cent  per  annum.  Why  should  not  the 
government  be  willing  to  treat  the  same  neglect 
to  pay  a  debt  due  to  it  with  the  same  penalty  ? 
A  large  part  of  those  who  fail  to  pay  taxes  are 
unable  to  pay  because  of  poverty,  and  the  money 
thus  wrongfully  taken  from  them  is  from  the 
fund  required  to  supply  necessities  of  life.  Often 
sickness,  unavoidable  misfortune  or  other  casu- 
alty has  disabled  them.  Under  such  circum- 
stances is  it  not  cruel  to  sell  a  home  reasonably 
worth  one  thousand  dollars  for  fifty  or  one  hun- 


62  FALLACIES  OF  THE  LAW, 

dred  dollari  taxes  and  then  in  a  short  period 
double  the  amount  by  adding  exorbitant  interest 
and  penalties,  and  if  redemption  is  not  made, 
convey  it  to  the  tax  buyer  for  the  inadequate 
price  he  has  paid  ? 

If  these  taxes  were  always  just  in  themselves 
the  transaction  would  not  seem  quite  so  bad. 
Sometimes  these  taxes  are  levied  to  aid  a  railroad 
corporation  in  building  a  railroad  through  the 
locality.  In  cities  a  large  proportion  is  usually 
assessed  for  paving  the  streets  or  building  side- 
walks and  sewers  adjacent  to  the  lot  or  land. 
These  improvements  are  mainly  for  the  enjoy- 
ment and  use  of  the  general  public,  and  the  poor 
who  seek  to  maintain  the  roof  over  their  heads 
are  often  compelled  to  pay  a  sum  much  greater 
than  any  benefit  they  have  received,  and  in  the 
collection  of  the  debt  the  state  resorts  to  methods 
which  it  would  not  tolerate  or  permit  to  be  used 
by  a  private  person.  A  great  government,  organ- 
ized to  establish  justice  and  permitted  to  exist 
upon  the  pretense  that  such  is  its  object,  should 
itself  be  just.  It  should  not  offer  extravagant 
bounties  to  tax-buyers,  nor  sell  property  in  such 
a  manner  that  it  will  not  bring  its  fair  value. 
Property  sold  for  taxes  should  be  first  appraised 
at  its  fair  market  value,  and  if  it  can  not  be  sold 


FALLACIES  OF  THE  LAW.         63 

for  at  least  two-thirds  of  that  amount  it  should 
be  taken  by  the  state.  The  time  of  redemption 
should  be  short;  but  whether  long  or  short,  the 
rate  of  interest  should  be  reasonable.  It  would 
seem  better  in  the  collection  of  taxes  to  refrain 
from  selling  real  estate  until  after  the  personal 
property  owned  by  the  tax  debtor  had  been  sold. 
The  law  would  then  not  be  a  trap  for  the  unwary 
tax  debtor,  nor  would  it  unduly  encourage  the 
tax -buying  industry.  The  law  should  be  so 
framed  that  a  tax  title,  when  acquired,  would  be 
a  good  title,  instead  of,  as  now,  subject  to  be  set 
aside  for  numerous  flaws  in  the  regularity  of  the 
proceedings.  It  should  be  considered  as  a  war- 
ranty deed  from  the  state,  and  in  case  there  is 
any  irregularity  or  fraud  shown  in  the  proceed- 
ings, on  account  of  which  a  loss  occurs,  the  state 
should  indemnify  the  losing  party. 

2.  Insurance  contracts.  Probably  no  kind  of 
contract  is  more  likely  to  work  injustice  than  the 
insurance  contract.  The  parties  to  it  have  many 
opportunities  of  cheating  each  other,  and  these 
are  sometimes  used  to  the  limit. 

Many  insure  property  with  the  secret  intention 
of  having  it  destroyed  by  fire,  that  they  may 
recover  its  value  from  the  insurance  company. 
Many  who  are  conscious  of  serious  physical  de- 


64  FALLACIES  OF  THE  LAW. 

fects  or  fatal  diseases  in  the  incipient  stage  con- 
tract for  life  insurance  on  representations  that 
they  are  in  perfect  health,  for  the  purpose  of  de- 
frauding the  company;  and  others,  contemplating 
violence  to  themselves,  or  suicide,  take  out  acci- 
dent-insurance policies  for  the  same  purpose. 
The  insurance  company  is  usually  promoted  by 
shrewd  men  for  the  purpose  of  accumulating  a 
fund  out  of  which  to  pay  themselves  exorbitant 
salaries  and  to  use  for  speculative  purposes. 
They  employ  persuasive  agents  who  adroitly 
work  upon  the  fears  of  the  credulous.  They  pre- 
dict oncoming  disasters  to  destroy  property,  and 
prophesy  impending  perils  to  life  and  limb,  and 
by  inspiring  the  hope  of  great  gain  to  the  insured 
or  his  dependents  these  agents  induce  great 
numbers  of  persons  to  turn  their  small  savings 
into  the  exchequer  of  the  insurance  company.  In 
the  litigation  which  arises  out  of  such  contracts 
it  is  difficult  for  either  party  to  procure  a  fair 
trial.  The  jury  before  whom  such  cases  are 
ordinarily  tried  usually  give  a  verdict  against  the 
insurance  company  on  every  question  of  fact  sub- 
mitted to  them.  The  judges,  perhaps  influenced 
by  this  well  known  trait  of  jurors,  often  incline 
the  other  way.  They  have  stepped  aside  from 
the  ordinary  principles  of  contracts  and  by  their 


FALLACIES  OF  THE  LAW.  65 

decisions  have  established  doctrines  of  law  that 
protect  insurance  companies  to  an  unreasonable 
extent. 

Life  and  accident  insurance  policies  are  usu- 
ally issued  upon  an  application  in  writing,  signed 
by  the  applicant.  This  application  is  stipulated 
to  be  a  part  of  the  contract,  and  contains  a  long 
series  of  questions  which  relate  to  the  age,  health 
and  history  of  the  applicant  and  the  history  of  his 
father,  mother,  brothers  and  sisters ;  the  cause  of 
their  deaths,  and  some  other  matters;  and  the 
applicant  warrants  all  the  statements  in  this  ap- 
plication to  be  true.  There  is  usually  a  provision 
in  either  the  application  or  the  policy  which  pro- 
vides that  in  case  any  statement  is  not  true  the 
policy  shall  be  void  at  the  election  of  the  com- 
pany, and  that  all  premiums  paid  thereon  shall 
be  forfeited. 

When  in  the  sale  of  personal  property  or  real 
estate,  or  in  any  other  department  of  human 
affairs,  one  person  warrants  another  that  a  cer- 
tain statement  is  true,  and  a  breach  occurs,  he  is 
liable  for  only  such  damages  as  the  other  has 
sustained  in  consequence  of  the  breach.  The 
sale  can  not  be  avoided,  but  on  account  of  it  the 
party  injured  by  the  breach  of  warranty  may, 
recoup  his   damages   in  a  suit  brought  for  the 


66  FALLACIES  OF  THE  LAW, 

price,  if  he  can  show  that  he  has  lost  anything  on 
account  of  the  breach  of  the  warranty.  But  so 
careful  are  the  courts  to  protect  insurance  com- 
panies that  they  hold  an  innocent  mistake  made 
by  the  applicant  in  his  application,  even  when 
entirely  immaterial  to  the  risk,  will  not  only  en- 
able the  insurance  company  to  refuse  to  pay  the 
policy  to  the  beneficiaries,  but  will  allow  it  to 
retain  all  the  money  received  thereunder.  Some 
courts  have  gone  so  far  as  to  permit  a  forfeiture 
of  the  policy  for  a  breach  of  warranty  relative  to 
immaterial  matters  where  there  was  no  clause 
whatever  in  the  policy  providing  for  such  forfeit- 
ure. If  these  policies,  loaded  down  with  abstruse 
provisions,  are  to  be  given  force  in  all  their  parts, 
a  mere  mistake  should  not  constitute  a  defense, 
unless  it  is  shown  to  have  increased  the  hazard 
or  caused  a  loss.  If  the  breach  was  the  cause  of 
the  death  of  the  insured,  or  the  destruction  of 
property  insured,  it  would  be  proper  to  make  it  a 
complete  defense,  but  if  it  has  in  no  way  caused 
any  loss  to  the  company  it  should  be  treated  as 
immaterial.  If  a  mistake  in  statement  of  age  or 
occupation  has  increased  the  hazard,  the  com- 
pany should  be  permitted  to  withhold  a  sufficient 
sum  to  pay  for  the  increase. 

In  an  insurance  contract  there  is  nothing  so 


FALLACIES  OF  THE  LAW.         67 

sacred  as  to  require  the  application  of  a  rule  dif- 
ferent from  the  one  that  is  applied  and  appears 
to  be  just  when  applied  to  other  contracts. 

3.  The  law  of  estoppel.  If  one  person  remains 
silent  when  it  is  his  duty  to  speak,  for  the  pur- 
pose of  inducing  another  to  act  in  ignorance  of 
his  rights,  or  if  he  speaks  falsely,  intending  to 
deceive,  and  another  is  by  either  act  induced  to 
part  with  money  or  property  or  otherwise  change 
his  position  to  his  detriment,  there  arises  what  is 
known  in  law  as  an  estoppel  in  pais,  and  the  per- 
son who  has  thus  remained  silent  or  has  spoken 
falsely  is  not  allowed  by  the  law  to  dispute  the 
truth  of  his  statement  or  to  assert  any  rights 
which  he  should  have  asserted  when  he  remained 
silent.  Thus  if  A  be  the  owner  of  a  horse  and  he 
stands  by  and  sees  B  bid  it  in  at  a  sale  as  the 
property  of  C,  and  says  nothing  to  assert  his  own 
title,  the  law  will  not  let  him  thereafter  set  up 
any  claim  to  the  horse.  Or  if  A,  for  the  purpose 
of  inducing  B  to  extend  credit  to  C,  states  to  B 
that  C  is  not  indebted  to  him,  and  relying  upon 
such  a  representation  B  is  induced  to  extend 
credit  to  C,  A  will  be  prevented  by  the  law  from 
afterward  asserting  any  debt  against  C  to  the 
prejudice  of  B.  On  first  appearance  the  principle 
seems  to  be  just,  but  a  critical  examination  shows 


f$S  FALLACIES  OF  THE  LAW. 

it  to  be  fallacious.  Consider  an  illustration: 
A  is  the  owner  of  a  horse  of  the  value  of  $ioo; 
B  has  it  levied  upon  by  an  execution  to  collect  a 
debt  of  ;^io  against  C.  If  A  stands  by  and  per- 
mits the  sale  to  proceed  without  asserting  his 
title,  B  may  get  the  entire  horse  for  $io,  the  sum 
due  him.  The  only  injury  that  B  could  sustain 
if  A  asserts  his  title  is  the  amount  he  has  paid 
for  the  horse.  The  law  of  estoppel  takes  $ioo 
from  A  and  gives  it  to  B  for  $\o.  This  works  a 
double  injustice:  it  makes  A  lose  more  than  the 
damages  that  are  caused  by  his  failure  to  speak, 
and  gives  B  more  than  the  loss  he  would  sustain, 
and  gives  C  a  credit  on  the  judgment  against  him 
of  ^lo  for  a  horse,  which  does  not  belong  to  him. 
In  the  place  of  such  a  rule  should  be  substituted 
the  law  of  compensation  for  actual  injuries  sus- 
tained, caused  by  the  failure  to  speak  or  by  the 
false  words  spoken.  In  the  case  supposed,  where 
A  has  lost  his  horse,  he  should  be  permitted  to 
pay  B  the  loss  B  has  sustained  and  retain  his 
horse. 

4.  Laws  giving  immunity.  The  law  does  not 
ordinarily  provide  for  any  method  of  collecting  a 
claim  against  a  state.  One  who  claims  to  have 
been  injured  by  the.  state,  or  who  has  parted  with 
his  property  or  money  under  a  contract  with  it, 


FALLACIES  OF   THE  LAW.  69 

has  no  right  to  sue  in  the  courts.  He  may  apply 
to  a  member  of  each  house  of  the  state  legislature 
and  have  bills  introduced  and  referred  to  com- 
mittees of  each  house.  These  may  report  upon 
the  bills  to  their  respective  houses,  and  the  claim- 
ant must  take  whatever  the  legislature  is  disposed 
to  give  him.  Unless  a  majority  of  both  houses 
have  time  and  disposition  to  compensate  him  for 
his  loss  he  must  go  unpaid.  To  get  a  claim  thus 
allowed  is  usually  fraught  with  great  difficulty, 
and  if  it  is  not  a  large  one  the  amount  realized 
will  not  be  sufficient  to  pay  the  expenses.  The 
state  government  thereby  sets  a  bad  example  to 
its  subjects.  It  should  be  willing  to  receive  the 
same  measure  of  justice  which  it  requires  others 
to  receive.  If  one  of  the  community  breaks  his 
contract  with  it  a  suit  may  be  brought  by  it  in  the 
courts.  Why  should  it  not  accord  the  same  right 
to  the  other  party  ? 

Again,  the  state  applies  a  different  rule  to 
claims  made  in  its  own  behalf  from  those  existing 
against  it.  In  the  statute  of  limitations  it  pro- 
vides that  claims  will  be  barred  if  not  sued  within 
a  certain  period.  Thus  the  private  suitor  may 
lose  his  claim  on  account  of  delay,  but  the  laws 
usuallj'  provide  that  this  statute  sh^U  have  no 
application  to  claims  in  favor  of  the  state.     In 


70  FALLACIES  OF  THE  LAW, 

this  the  state  shows  itself  unwilling  to  submit  to 
its  own  rules  of  justice.  It  is  said  that  the  test 
of  character  is  the  use  one  makes  of  power.  The 
fact  that  the  state  is  a  sovereign  and  the  fountain 
of  power  should  also  make  it  the  fountain  of 
honor,  and  it  should  claim  for  itself  no  privilege 
that  it  is  not  willing  under  the  same  circum- 
stances to  accord  to  the  weakest  of  its  subjects. 
5.  Distinction  between  civil  and  criminal 
cases.  The  law  everywhere  makes  a  distinction 
between  the  quantity  of  evidence  required  to 
prove  an  ordinary  fact  and  a  fact  showing  a  vio- 
lation of  a  criminal  statute.  The  defendant  may 
be  defeated  in  a  suit  brought  against  him  for 
wrongfully  taking  the  plaintiff's  horse,  if  the  fact 
that  he  took  it  is  proved  by  a  preponderance  of 
the  evidence,  but  he  can  not  be  convicted  of 
stealing  it  unless  the  fact  that  he  took  it  is  proved 
beyond  a  reasonable  doubt.  The  truth  of  a  fact 
does  not  depend  at  all  upon  the  consequences 
the  law  attaches  to  it.  If  a  charge  is  true  it  is 
true,  whether  the  law  makes  it  criminal  or  other- 
wise, and  if  evidence  really  proves  the  truth  of  a 
charge  it  is  proved  without  regard  to  conse- 
quences. Why  then  should  there  be  such  a  dis- 
tinction between  civil  and  criminal  cases  ?  Why 
should  it  require  a  greater  amount  of  evidence  to 


FALLACIES  OF  THE  LAW.  J I 

impose  a  five-dollar  fine  than  to  collect  a  debt  for 
many  thousands  of  dollars,  or  damages  on  ac- 
count of  a  great  bodily  injury  ?  If  the  distinction 
were  a  clear  one  it  would  not  seem  so  bad;  but 
upon  examination  it  will  be  found  very  hazy  and 
exceedingly  difficult  to  apply.  What  is  a  mere 
preponderance  of  the  evidence  is  a  question  that 
can  not  be  exactly  answered.  To  arrive  at  it 
the  judge  or  jury  are  asked  to  put  the  evidence 
offered  by  the  plaintiff  on  one  side  of  an  imagi- 
nary scale  and  the  evidence  offered  by  the  de- 
fendant on  the  opposing  side,  and  if  the  evidence 
of  the  plaintiff  weighs  more  than  the  evidence  of 
the  defendant,  the  court  should  find  for  the  plain- 
tiff. It  has  often  been  decided  that  the  plaintiff's 
evidence  need  not  be  strong  enough  to  convince 
or  satisfy  the  mind.  The  only  kind  of  weight 
which  evidence  possesses  is  its  convincing  force, 
and  when  it  is  not  sufficiently  strong  to  convince 
the  mind  of  its  truth  it  certainly  has  no  real  force 
to  prove  a  claim. 

Proof  beyond  a  reasonable  doubt  is  equally 
hazy  and  difficult  of  application.  This  is  sup- 
posed to  be  a  very  high  degree  of  proof.  What 
is  a  reasonable  doubt?  The  word  reasonable  is 
quite  elastic,  and  every  mind  will  give  it  a  mean- 
ing of  its  own.     It  is  sometimes  defined  to  be  a 


72  FALLACIES  OF  THE  LAW, 

doubt  that  fairly  arises  and  is  not  sought  after. 
This  definition  does  not  remove  the  difficulty; 
for  we  have  another  elastic  term  in  the  word 
fairly,  which  every  man  will  measure  according 
to  his  own  conception  of  what  is  fair.  This  rule 
is  so  difficult  to  apply  that  persons  may  be  con- 
victed on  slight  evidence  or  acquitted  when  the 
evidence  of  guilt  is  strong.  There  is  no  just 
reason  for  the  definition.  Before  a  judgment  is 
entered  in  any  proceeding  the  court  should  be 
convinced  that  existing  facts  make  such  a  judg- 
ment a  just  one  under  the  law.  This  should  be 
the  rule  whether  the  suit  be  for  a  civil  debt  or  to 
punish  a  crime.  If  extraordinary  care  is  to  be 
exercised  by  the  court  in  considering  the  evidence 
it  should  be  because  of  the  importance  of  the 
question  involved.  A  judgment  depriving  the 
defendant  of  his  fortune,  his  liberty  or  his  life 
should  be  rendered  after  a  more  careful  delibera- 
tion and  consideration  of  the  evidence  than  a 
judgment  for  a  small  debt  or  fine.  This  is  apply- 
ing to  court  business  the  same  care  which  intelli- 
gent people  apply  to  all  other  business. 

6.  Covenant  to  repair  in  a  lease.  A  covenant 
to  repair  in  a  lease  is  construed  in  law  to  em- 
brace an  agreement  to  rebuild.  Where  the  tenant 
agrees  to  make  repairs  and  there  is  no  exception 


FALLACIES  OF  THE  LAW.  73 

in  his  lease  qualifying  the  agreement,  if  the 
building  burns  down,  or  is  otherwise  destroyed, 
he  must  continue  to  pay  rent  for  the  premises  to 
the  end  of  the  term,  and  also  may  be  required  by 
the  landlord  to  rebuild  the  building.  If  he  fails 
to  rebuild  before  the  expiration  of  his  term,  the 
landlord  may  obtain  a  judgment  for  what  it  will 
cost  to  perform  the  task.  With  such  strictness 
is  this  rule  enforced  that  no  contemporaneous 
conversation  or  agreements  will  serve  in  the  leas  i; 
to  modify  the  effect  of  this  covenant  to  repair. 
In  a  certain  case  the  Supreme  Court  of  Iowa  en- 
forced it  against  a  widow  and  compelled  the  loss 
of  her  small  savings  in  replacing  the  building 
destroyed  by  fire  on  the  leased  premises  because 
she  had  signed  a  lease  containing  an  unqualified 
agreement  to  repair. 

The  law  of  landlord  and  tenant  was  made  by 
landlords,  and  contains  many  other  provisions 
almost  as  severe  as  this.  Consider  another  illus- 
tration of  a  similar  character :  A  tenant  familiar 
with  a  certain  kind  of  business  leases  a  building 
for  a  term  of  years  for  the  purpose  of  conducting 
his  particular  business  therein.  The  building 
has  been  constructed  and  provided  with  appli- 
ances to  make  it  especially  fit  for  use  in  such 
business.     After  he  rents  it  the  state  or  city  in 


74  FALLACIES  OF  THE  LAW. 

which  the  property  is  located  passes  a  law  or 
ordinance  prohibiting  the  use  of  the  building  for 
the  purpose  for  which  it  is  intended  to  be  used. 
The  law  of  landlord  and  tenant  will  give  the 
tenant  no  relief  whatever.  The  public  have  an 
absolute  right  in  making  police  regulations  to 
forbid  the  use  of  the  building  for  that  purpose, 
and  the  tenant  has  no  recourse  against  the  gov- 
ernment. The  landlord  is  permitted  to  enforce 
his  contract  to  pay  the  rent  to  the  very  letter, 
and  the  tenant  must  continue  to  pay  the  rent  and 
to  sustain  all  the  loss.  Is  it  just  that  the  land- 
lord should  be  allowed  to  receive  full  compen- 
sation for  a  use  which  is  of  no  value  ?  It  is  a 
principle  of  justice  that  where  two  persons  are 
associated  in  a  joint  undertaking,  and  a  loss  oc- 
curs to  the  common  property  without  the  fault  of 
either,  each  should  share  it  equally.  Why  should 
not  this  apply  to  the  association  of  landlord  and 
tenant  ?  During  the  term  of  the  lease  each  seeks 
to  derive  profit  from  the  use  of  the  premises,  and. 
why  should  not  a  change  in  the  law  or  the  hap- 
pening of  a  casualty  that  destroys  the  value  of  the 
use  have  the  effect  of  destroying  the  obligation  of 
the  contract  to  pay  for  it,  and  the  loss  resulting 
therefrom  be  apportioned  between  the  landlord 
and  the  tenant  ? 


CHAPTER  VII. 

FALLACIES    IN    GENERAL    LAWS  —  Continued. 

7.  Property  laws.  The  amount  of  property 
which  one  may  own  will  always  depend  upon  the 
law  where  the  property  is  situated.  Without  the 
protection  of  the  government  in  his  possession  no 
one  could  control  very  much  land  or  personal 
property,  because  he  would  be  limited  to  the 
quantity  which  he  could  defend  by  his  own 
prowess  against  all  persons  who  might  wish  to 
deprive  him  of  his  possession.  What  we  call 
title  is  purely  a  creature  of  the  law,  and  must 
ever  depend  upon  the  will  of  those  who  control 
the  government.  It  is  essentially  a  monopoly  so 
far  as  the  particular  property  is  concerned,  be- 
cause it  has  the  effect  of  preventing  all  other 
persons  from  using  the  property  except  upon  the 
terms  fixed  by  the  holder  of  the  title.  Such  a 
monopoly  should  not  be  conferred  except  it  be 
for  the  common  benefit.  The  private  ownership 
of  property  is  essential  to  the  happiness  of  a 
civilized  community,  and  every  member  before 
he  becomes  incapacitated  by  age  should  have  an 


76  FALLACIES  OF  THE  LAW, 

opportunity  to  acquire  by  his  industry  a  sufficient 
quantity  to  make  himself  independent  of  the 
charity  of  his  friends  or  his  country.  This  he 
may  acquire  in  the  shortest  time  possible  to  him 
if  he  obeys  the  laws  conferring  equal  rights  and 
privileges  upon  every  member  of  the  community. 

It  frequently  happens  that  those  who  are  fitted 
by  nature  to  the  acquisition  of  property  are  also 
favored  by  fortune,  and  by  unequal  laws  they  are 
able  thus  to  accumulate  more  property  than  they 
will  ever  need  to  supply  their  wants  or  the  wants 
of  any  of  their  dependents.  Some  of  these  still 
strive  to  accumulate  more.  For  personal  grati- 
fication or  amusement  they  pile  up  vast  quanti- 
ties of  wealth  merely  to  gratify  their  personal 
pride.  Our  laws  place  no  limit  whatever  upon 
the  quantity  of  personal  property  or  the  area  of 
the  earth's  surface  which  one  may  acquire.  Is 
this  in  accordance  with  the  general  welfare  in  a 
community  where  many  want  the  necessaries  of 
life  and  but  few  possess  its  luxuries  ?  Should 
one  member  be  permitted  to  accumulate  vastly 
more  than  his  needs  require,  merely  to  gratify  a 
foolish  whim,  a  senseless  if  not  an  insane  pas- 
sion ? 

Pioneers  in  a  new  country,  where  there  is 
room  enough  for  all,  may  allow  some  of  their 


FALLACIES  OF  THE  LAW.  7/ 

members  to  monopolize  great  areas  of  land  and 
its  products,  if  at  the  time  there  is  enough  re- 
maining so  that  all  will  have  sufficient.  But  with 
the  increase  of  population  the  time  will  come 
when  a  limit  must  be  placed  upon  avarice.  If 
this  is  not  done,  a  few,  shrewder  and  more 
thrifty  than  the  rest,  will  acquire  substantially 
all  the  land  and  so  much  other  wealth  that  they 
can  combine  and  reduce  the  others  to  a  condition 
of  dependence.  If  that  time  has  not  already 
come  in  this  country  it  is  close  at  hand.  Private 
fortunes  have  increased  to  such  proportions  as 
to  be  dangerous  to  the  liberties  of  the  people. 
The  law  should  be  so  changed  as  to  place  a  limit 
upon  the  quantity  of  property  which  any  one 
member  of  the  community  may  own.  There 
should  also  be  similar  legislation  relative  to  cor- 
porations. While  a  corporation  is  an  aggregate 
of  persons,  they  all  act  together  as  a  unit.  The 
quantity  of  property  which  it  may  be  allowed  to 
own  should  of  course  be  larger  than  the  amount 
allowed  a  single  individual,  but  nevertheless  it 
should  be  limited. 

The  law  places  no  limit  upon  the  quantity  of 
property  which  may  be  devised  by  will.  One 
who  has  been  the  favorite  of  the  law  or  of  fortune 
and  has  been  able  to  exclude  multitudes  of  his 


78  FALLACIES  OF  THE  LAW, 

fellows  from  vast  areas  of  the  earth's  surface  and 
from  their  products  during  his  life  may  by  will 
bestow  this  property  upon  another,  and  thus  con- 
tinue the  exclusion  long  after  he  has  ceased  to 
exist.  The  generous  love  the  dying  have  for 
V friends  or  relatives  may  be  tolerated  to  a  reason- 
'able  extent,  but  there  should  certainly  be  a  limit 
to  the  quantity  of  property  that  may  be  thus  de- 
vised. The  great  bulk  of  large  fortunes  not 
needed  by  the  dependents  of  the  dead  man 
should,  after  his  death,  be  returned  to  the  com- 
munity, in  order  that  those  surviving  may  have 
an  equal  opportunity  to  enjoy  the  earth  and  its 
fruits. 

All  persons  who  live  on  this  planet  must  find 
room  on  it  for  a  dwelling  and  a  place  to  work  for 
their  own  sustenance.  If  a  few  own  all  the  land, 
the  others  must  be  their  tenants  and  depend  upon 
the  will  of  these  few  for  the  kind  of  an  existence 
they  shall  have.  There  is  no  limit  placed  by  the 
law  upon  the  quantity  of  land  which  one  person 
may  acquire  for  speculative  purposes  and  hold 
vacant  and  unused.  Such  speculators  hold  land 
unoccupied,  waiting  for  an  increase  of  population 
to  create  a  need  for  it,  hoping  to  take  advantage 
of  this  need  and  raise  the  price  of  their  holdings. 
All  that  they  thus  gain  is  taken  from  the  public 


FALLACIES  OF  THE  LAW.  79 

without  any  compensation.  Should  not  the  law 
place  a  limit  upon  the  quantity  of  vacant  land 
that  any  one  can  hold  for  a  rise,  and  a  limit  upon 
the  time  he  may  so  hold  it  ? 

8.  Corporation  laws.  The  laws  of  every  state 
provide  for  the  formation  of  corporations  for 
pecuniary  profit.  Some  laws  are  more  liberal 
than  others,  but  all  confer  upon  the  stockholders 
some  immunity  from  the  debts  of  the  corpora- 
tion; and  excepting  banking  corporations,  the 
stockholders  are  not  responsible  for  the  debts  of 
the  corporation  if  they  have  paid  for  the  stock 
subscribed  and  the  corporation  is  organized 
according  to  law.  The  only  advantage  which 
accrues  to  the  public  from  this  corporation  law  is 
that  persons  are  induced  thereby  to  invest  money 
in  certain  kinds  of  business  which  the  public 
desires  to  encourage.  Persons  often  are  induced 
to  make  such  investments  because  they  stand  in 
such  a  situation  that  if  the  business  is  profitable 
they  will  reap  the  profits,  and  if  it  is  unprofitable 
their  losses  will  be  limited  by  the  amount  of 
stock  which  they  have  taken.  If  no  false  repre- 
sentations are  practiced  upon  the  public,  and  the 
corporation  actually  possesses  assets  equal  in 
value  to  the  amount  of  its  capital  stock,  those 
who  trust  it  know  that  they  have  no  other  prop- 


8o         FALLACIES  OF  THE  LAW. 

erty  to  rely  on,  and  they  do  so  at  their  peril. 
But  in  many  states  the  laws  are  so  framed  that 
corporations  may  be  organized  and  large  amounts 
of  capital  stock  issued  without  the  actual  pay- 
ment to  the  corporation  of  the  value  of  the  stock. 
In  some,  none  of  the  stock  is  required  to  be  paid 
for  at  organization.  In  others,  only  a  small  por- 
tion is  required  to  be  paid,  and  the  portion  not 
paid  stands  as  the  liability  of  the  stockholders. 
The  promoters  of  these  corporations  so  manage 
the  matter  that  where  payment  is  made  for  the 
capital  stock  subscribed  it  is  made  by  a  convey- 
ance of  patent  rights,  mining  leases,  worthless 
franchises  and  the  like,  from  the  promoters  of  the 
corporation  to  the  corporation.  In  taking  these 
conveyances  they  act  for  the  corporation;  and 
being  themselves  both  buyers  and  sellers,  they 
estimate  the  worth  of  this  property  of  doubtful 
value  at  prices  running  into  millions  of  dollars, 
and  issue  to  themselves  fully  paid  up  capital 
stock  in  the  corporation  to  the  amount  of  this  fic- 
titious estimate. 

The  stock  thus  issued  is  evidenced  by  certifi- 
cates printed  on  good  paper  containing  engraved 
letters  and  pictures  like  those  on  the  money  of  the 
Government,  and  is  sealed  with  an  artistic  seal. 
This   stock   they  sell    to  widows,  orphans   and 


FALLACIES  OF  THE  LAW.  8 1 

other  people  who  are  foolish  enough  to  believe 
that  stock  which  appears  to  have  the  sanction  of 
the  government  is  a  safe  investment.  It  also 
frequently  happens  that  the  stock  of  these  large 
corporations  is  not  actually  subscribed  for  at  all 
when  they  are  organized,  the  subscription  being 
merely  a  bogus  contract.  A  and  B,  who  are 
financially  responsible,  employ  C,  a  clerk  who  has 
no  financial  existence,  to  subscribe  for  all  the 
stock  of  the  corporation  except  two  shares,  one  of 
which  is  taken  by  A  and  the  other  by  B.  It  is 
not  intended  that  C  shall  receive  the  stock  thus 
subscribed  for  by  him.  He  is  merely  a  mask 
behind  which  A  and  B  operate.  Often  all  the 
persons  who  thus  subscribe  for  stock  are  of  no 
financial  responsibility  and  never  expect  to  ac- 
quire anything  except  by  fraudulent  practices, 
and  what  they  do  acquire  they  do  not  intend  to 
hold  longer  than  necessary  to  put  it  in  the  names 
of  their  wives,  sisters  or  other  relatives.  These 
pay  for  stock  in  their  promissory  notes  or  in  the 
worthless  promissory  notes  of  some  one  else,  and 
thus  obtain  a  charter  which  is  nothing  but  a 
fraudulent  device  intended  to  fleece  innocent  and 
gullible  people  out  of  their  savings.  By  the 
agency  of  such  liberal  state  laws  the  United 
States  has  become  a  rich  field  for  shrewd  rascals 


82  FALLACIES  OF  THE  LAW. 

operating  in  pursuance  of  the  law.  The  laws 
should  require  every  corporation,  before  it  re- 
ceives a  license  to  do  business  anywhere,  to  fur- 
nish unquestionable  proof  that  the  value  of  its 
assets  is  fully  equal  to  the  amount  of  the  capital 
stock  which  it  is  authorized  to  issue. 

9.  Promissory  notes.  A  promissory  note  is 
in  its  essence  merely  an  agreement  in  writing  to 
pay  money.  It  is  simple  enough  by  itself,  but 
the  laws  relating  to  it  are  very  numerous  and 
bristle  with  arbitrary  rules  which  would  require 
a  large  volume  to  set  forth  and  explain  fully. 

One  of  the  qualities  which  the  law  confers 
upon  instruments  of  this  nature  is  that  of  nego- 
tiability. If  the  note  is  payable  to  bearer  or 
payable  to  the  order  of  some  person,  and  the 
amount  to  become  due  on  it  is  definite,  and  the 
time  when  it  will  become  due  is  certain,  or  capa- 
ble of  being  made  so  by  the  happening  of  a  cer- 
tain event,  and  the  promise  to  pay  is  certain  and 
unconditional,  then  the  note  may  be  transferred 
so  that  the  legal  title  to  it  will  pass  from  one 
person  to  another,  and  the  person  receiving  the 
title,  called  the  holder,  may  sue  in  his  own  name. 
If  the  note  is  payable  to  bearer,  a  mere  delivery 
of  the  possession  of  the  instrument  is  sufficient 
to  transfer  the  title;  but  if  it  is  payable  to  the 


FALLACIES  OF  THE  LAW.         83 

order  of  some  person,  the  said  person  must  in- 
dorse his  name  upon  the  back  of  the  note.  If  he 
does  this,  and  does  not  qualify  his  indorsement, 
he  becomes  liable  to  pay  the  note,  provided  paj'- 
ment  is  demanded  of  the  maker  on  the  day  it  is 
due,  and  the  indorser  is  notified  of  the  failure  on 
the  day  following.  If  the  parties  reside  in  the 
same  place  and  payment  is  not  demanded  on  the 
very  day  the  note  becomes  due,  and  the  indorser 
is  not  notified  the  very  next  day,  the  one  who 
buys  the  note  loses  all  right  to  collect  it  of  the 
indorser.  If  the  note  lacks  any  of  the  elements 
of  certainty  above  specified,  the  title  can  not 
ordinarily  be  transferred  by  any  kind  of  indorse- 
ment or  assignment,  and  whoever  buys  it  can  not 
bring  a  suit  upon  it  against  the  maker  unless  he 
brings  it  in  the  name  of  the  person  to  whom  the 
note  was  originally  made  payable.  But  if  it  con- 
tains all  these  elements  of  certainty  and  is  trans- 
ferred by  delivery  or  by  indorsement,  the  person 
who  buys  it  in  good  faith  and  pays  a  valuable 
consideration  before  the  note  becomes  due  may 
sue  the  maker  in  his  own  name,  and  the  maker 
then  can  not  show  as  a  defense  that  the  note  was 
obtained  from  him  by  fraudulent  representations 
relative  to  the  thing  for  which  it  was  given,  or 
that  there  was  no  consideration  for  the  note,  or 


84  FALLACIES  OF  THE  LAW. 

that  the  consideration  which  was  agreed  to  be 
given  for  it  was  not  given,  or  that  any  other  facts 
exist  by  which  the  paj^ee  of  the  note  is  indebted 
to  him  for  any  sum  which  should  be  applied  upon 
the  payment  of  the  note.  But  the  maker  may 
show  that  he  did  not  sign  the  note  and  his  signa- 
ture to  it  is  a  forgery,  or  he  may  show  that  he 
was  by  fraud  induced  to  sign  the  note  supposing 
it  was  an  instrument  of  a  different  character,  or 
he  may  show  that  the  note  after  he  signed  it  was 
taken  from  his  possession,  and  never  had  in  fact 
been  delivered  by  him.  Thus  we  see  the  law 
allows  the  maker  to  protect  himself  from  being 
defrauded  in  certain  circumstances,  yet  permits 
him  to  be  defrauded  in  others. 

Why  should  the  person  who  buys  a  note  ac- 
quire any  greater  rights  than  are  possessed  by  the 
one  who  sells  it  to  him,  and  why  should  the  law 
lend  its  assistance  to  the  purchaser  of  a  promis- 
sory note  which  was  fraudulently  obtained,  and 
thus  enable  him  to  consummate  the  fraud  which 
the  payee  is  attempting  to  commit  against  the 
maker  ?  The  purchaser  of  such  a  note  must 
rely  either  upon  the  credit  of  the  one  who  made 
the  note  or  upon  the  credit  of  the  one  who  in- 
dorsed and  sold  it  to  him,  or  both.  If  he  relies 
upon  the  credit  of  the  maker  he  must  know  some- 


FALLACIES  OF  THE  LAW.  85 

thing  about  him,  and  he  ought  at  least,  before  he 
parts  with  any  money  or  property  as  a  consider- 
ation for  the  note,  to  ascertain  from  the  maker 
whether  there  is  a  defense  to  it.  Transactions  of 
this  kind  are  usually  made  upon  the  credit  which 
the  buyer  extends  to  the  seller,  and  most  excep- 
tions are  cases  where  the  buyer  colludes  with  the 
seller  for  the  purpose  of  assisting  him  in  collect- 
ing an  unjust  claim. 

Another  feature  of  this  law  is  objectionable. 
In  a  suit  brought  upon  a  note  the  law  presumes 
that  the  holder  purchased  it  before  maturity,  that 
he  paid  a  valuable  consideration  for  it,  and  that 
he  had  no  notice  of  any  defense  existing  in  favor 
of  the  maker.  Thus  it  puts  upon  the  maker  the 
burden  of  proving  the  contrary  when  he  defends 
against  the  note.  Before  he  is  allowed  to  offer 
any  evidence  in  his  defense  he  must  allege  and 
prove  that  the  holder  bought  the  paper  after  ma- 
turity, or  that  he  did  not  pay  a  valuable  consid- 
eration, or  that  he  had  knowledge  of  the  existence 
of  a  defense  thereto.  This  rule  works  a  great 
injustice  upon  the  defendant.  Ordinarily  there 
is  no  way  by  which  the  facts  relative  to  the  pur- 
chase of  the  paper  by  the  plaintiff  can  be  proven 
except  by  the  plaintiff  himself,  his  agent,  or  the 
colluding  payee.     All  of  these  are  unwilling  wit- 


86  FALLACIES  OF  THE  LAW. 

nesses  and  interested  in  stating  the  matter 
falsely.  The  defendant  by  putting  them  upon 
the  stand  as  witnesses  takes  the  risk  of  fur- 
nishing the  testimony  to  defeat  himself.  Why 
should  not  the  burden  be  placed  upon  the  pur- 
chaser to  show  when  and  for  what  consideration 
he  purchased  the  paper,  and  that,  at  the  time  he 
purchased  it  and  parted  with  his  money  or  prop- 
erty, he  had  no  knowledge  or  means  of  informa- 
tion of  the  existence  of  a  defense  ? 

These  are  but  a  few  illustrations  that  tend  to 
show  what  pitfalls  have  been  created  by  the  law 
around  so  simple  a  thing  as  the  promise  to  pay. 
Why  should  not  a  person  be  permitted  to  sell 
and  transfer  a  title  to  anything  that  he  has — 
whether  it  be  a  house,  a  horse  or  a  note — and  if 
he  is  responsible  at  all  for  the  payment  of  the 
obligation  which  he  transfers,  why  should  he  not 
continue  liable  to  the  same  extent  as  he  would  be 
on  any  other  obligation  which  he  had  assumed, 
and  why  should  not  the  person  who  buys  it  take 
just  the  same  rights  the  seller  had  and  be  subject 
to  the  same  defenses  which  existed  against  the 
seller  ? 

Probably  the  only  justification  which  will  be 
urged  in  the  defense  of  this  law  is  that  it  is  a 
great  convenience  to  those  who  buy  and  sell 


FALLACIES  OF  THE  LAW.         07 

promissory  notes,  and  that  it  enables  such  notes 
to  circulate  as  money,  when  they  are  negotiable 
in  form.  Why  should  the  convenience  of  one 
person  in  the  community  be  made  a  legal  excuse 
for  perpetrating  a  fraud  upon  another  through 
the  agency  of  the  law  ? 


CHAPTER  VIII. 
LEGAL   FICTIONS. 

A  LEGAL  FICTION  is  an  assumption  by  the  law 
that  a  statement  is  true  when  everybody  knows 
it  to  be  false.  Many  such  fictions  have  been  cre- 
ated by  decisions  of  courts.  Some  have  worked 
great  injustice  and  tended  to  impair  our  judicial 
machinery. 

I.  A  corporation  a  citizen.  There  is  a  fiction 
which  considers  a  corporation  a  citizen  of  the 
United  States.  The  federal  laws  give  the  circuit 
courts  of  the  United  States  jurisdiction  of  con- 
troversies arising  between  citizens  of  different 
states,  and  allow  citizens  of  one  state  who  are 
sued  in  another  to  remove  the  case  from  the 
state  court  to  the  circuit  court  of  the  United 
States.  This  fiction  considers  a  corporation  a 
citizen  of  the  state  under  whose  laws  it  is  organ- 
ized. It  is  customary  for  the  promoters  of  cor- 
porations to  organize  them  in  states  where  a 
license  can  be  obtained  for  the  least  money  and 
where  the  laws  grant  the  most  liberal  powers  and 
contain  the  least  restrictions.     To  secure  reve- 


FALLACIES  OF  THE  LAW.         89 

nue,  some  states  offer  superior  inducements  to 
the  promoters  of  such  corporations,  and  the 
result  is  that  a  large  number  of  corporations  are 
organized  in  states  in  which  they  do  not  expect 
to  engage  in  business.  In  the  state  where  organ- 
ized they  comply  with  the  law  by  maintaining  a 
dummy  office  at  slight  expense  and  a  set  of 
dummy  directors.  The  same  office  and  directors 
may  perform  this  service  for  thousands  of  corpo- 
rations. When  such  a  corporation  is  sued  by  a 
citizen  of  the  state  where  it  is  in  business  and 
has  its  principal  office  it  may,  because  of  the  fic- 
tion aforesaid,  remove  the  case  to  the  circuit 
court  of  the  United  States  and  compel  the  plain- 
tiff to  attend  that  court  with  his  witnesses  or  be 
deprived  of  any  relief.  The  circuit  court  usually 
does  not  sit  in  the  county  where  the  plaintiff 
resides,  and  frequently  is  located  a  long  distance 
therefrom.  Its  judge  was  not  elected  by  the  peo- 
ple, but  was  appointed  for  life  by  the  President 
of  the  United  States.  The  jury  in  that  court  is 
not  selected  from  the  people  in  the  county  where 
the  plaintiff  resides,  or  where  the  cause  of  the 
action  arose,  but  is  selected  by  federal  appointees 
from  the  manj^  counties  composing  the  circuit. 
The  practice  in  this  court  differs  somewhat  from 
the  practice   of  the  courts  where  the  plaintiff 


90         FALLACIES  OF  THE  LAW. 

resides,  and  the  cost  of  the  case  and  the  expense 
of  emplojang  counsel  are  much  greater.  If  the 
plaintiff  or  his  opponent  is  dissatisfied  with  the 
judgment  the  appeal  does  not  go  to  the  supreme 
court  of  the  state,  whose  judges  have  been  elected 
by  the  people,  but  to  the  United  States  Circuit 
Court  of  Appeals,  composed  also  of  federal  ap- 
pointees holding  life  terms.  The  expenses  of 
this  appeal,  in  court  costs  and  counsel  fees,  are 
also  much  greater  than  in  the  state  courts.  If 
this  court  of  appeals  renders  a  decision  unsatis- 
factory to  either  party  the  decision  must  be  re- 
viewed, if  at  all,  by  the  Supreme  Court  of  the 
United  States  at  Washington.  The  case  can  not 
be  taken  to  that  court  for  review  without  incur- 
ring large  expense,  and  appeal  is  often  accompa- 
nied by  long  delay,  because  the  court  is  many 
years  behind  in  its  docket;  and  unless  the  case  is 
entitled  to  be  advanced  because  of  its  peculiar 
nature,  the  litigant,  if  past  his  prime,  must  be 
long  lived  if  he  survives  to  see  his  case  reached 
and  a  final  judgment  rendered  after  having  trav- 
eled the  route  indicated  through  the  Supreme 
Court  of  the  United  States,  especially  if  the  case 
has  been  reversed  and  remanded  a  few  times. 
All  of  this  delay  and  extraordinary  expense  is  due 
to  the  fiction  under  discussion.    A  corporation  is 


FALLACIES  OF  THE  LAW.  9 1 

not  in  fact  a  citizen.  It  is  not  even  a  human 
being,  or  any  other  kind  of  a  being.  It  has  no 
residence,  and  is  just  as  much  at  home  in  one 
place  as  another.  It  is  merely  a  name  under 
which  certain  men  have  obtained  a  license  to  do 
business  and  escape  personal  responsibility. 

2.  Another  legal  fiction  is  the  rule  of  law  which 
presumes  that  every  amendment  which  charges 
a  distinct  act  of  negligence  as  the  cause  of  the 
same  injury  is  the  beginning  of  a  new  suit.  If 
the  plaintiff  is  injured  in  a  railroad  wreck  he  may 
bring  a  suit  to  recover  damages  and  allege  that 
his  injury  was  caused  by  the  negligence  of  the 
defendant  in  not  providing  an  air-brake  on  the 
train.  The  case  may  not  be  reached  for  trial 
until  more  than  two  years  have  elapsed  since  the 
injury.  The  plaintiff  may  then  discover  that  an 
air-brake  was  provided,  but  that  the  negligence 
consisted  in  not  using  it.  He  then  seeks  to 
amend  his  declaration  by  charging  another  kind 
of  negligence.  The  statute  of  limitations  in  the 
state  provides  that  actions  for  personal  injury 
must  be  brought  within  two  years  or  they  will  be 
forever  barred.  The  court  under  this  fiction  of 
law  holds  that  the  amendment  to  the  declaration, 
charging  another  act  of  negligence,  is  the  bring- 
ing of  a  new  suit,  and  therefore  a  right  to  recover 


92  FALLACIES  OF  THE  LAW. 

for  the  injury  caused  by  the  newly  alleged  act  of 
negligence  is  barred.  This  fiction  of  course  is 
false.  There  is  but  one  cause  of  action,  and  that 
is  the  injury  for  which  the  suit  was  originally 
brought,  and  an  amendment  alleging  another  act 
of  negligence  is  only  an  additional  statement  of 
the  cause  of  the  same  injury.  But  so  blind  is 
the  law  to  the  facts,  and  so  unfeeling  is  it  to 
human  suffering,  that  the  defendant  escapes  the 
consequence  of  his  wrong  through  the  narrow 
passage  of  this  fiction. 

The  statute  of  limitations  certainly  was  not 
intended  to  produce  such  a  result.  The  defend- 
ant in  such  a  case  is  sued  for  a  specific  injury, 
and  has  notice  that  all  its  conduct  on  that  subject 
is  under  investigation,  and  is  put  in  no  worse 
position  because  the  precise  act  of  negligence  was 
not  sooner  alleged.  But  if  it  were,  and  needed 
more  time  to  get  evidence  to  defend  against  the 
new  charge  of  negligence,  such  time  should  be 
granted.  Instead  of  restricting  the  defendant  to 
this  right,  the  law  as  now  administered  dis- 
charges him  from  liability  for  all  acts  of  negli- 
gence not  alleged  in  the  declaration  before  the 
lapse  of  two  years.  This  method  causes  many 
just  claims  to  be  defeated  because  the  judge  who 
hears  the  case  and  the  plaintiff's  attorney  differ 


FALLACIES  OF  THE  LAW.  93 

in  their  notion  of  the  meaning  of  the  declaration 
or  as  to  the  nature  of  the  act  of  negligence  which 
caused  the  injury. 

Where  it  is  plain  that  suit  has  been  brought 
to  redress  a  certain  injury,  amending  the  declara- 
tion should  not  be  considered  as  the  bringing  of 
a  new  suit.  The  statute  of  limitations  should 
deem  an  action  brought  when  it  is  brought,  and 
all  pleadings,  whether  amendments  or  substi- 
tutes, which  relate  to  the  same  injury  should  be 
considered  merely  a  continuation. 

3.  There  is  another  fiction  which  holds  that 
any  one  who  intentionally  fails  to  comply  with  an 
order  of  the  court,  or  does  any  act  in  its  pres- 
ence, or  interferes  with  any  of  its  officers  acting 
under  its  authority,  is  guilty  of  a  contempt  of 
court.  The  majesty  of  the  occupant  of  the  bench 
is  supposed  to  be  insulted  by  these  acts,  and 
therefore  he  causes  the  offender  to  be  arrested 
and  brought  before  him  and  tried  informally  by 
him,  and  sentences  him  to  pay  a  fine  or  suffer  a 
term  in  prison.  The  offense  may  be  committed 
by  a  failure  to  pay  alimony  or  attorney's  fees 
ordered  to  be  paid  in  a  divorce  suit,  or  by  mak- 
ing a  noise  within  the  hearing  of  the  judge,  or  in 
his  presence  using  language  which  he  does  not 
approve,  or  committing  some  other  act  deemed 


94  FALLACIES  OF  THE  LAW. 

by  him  improper,  such  as  speaking  to  jurymen, 
interfering  with  property  in  the  custody  of  receiv- 
ers, refusing  to  obey  an  officer  or  a  process,  or 
violating  an  injunction  or  a  restraining  order 
which  the  court  has  issued. 

Contempts  arising  from  violating  injunctions 
have  become  very  numerous,  and  the  methods 
adopted  to  punish  them  have  an  important  bear- 
ing upon  civil  liberty.  Injunctions  are  issued  to 
forbid  all  those  classes  of  acts  which  are  alleged 
to  be  nuisances,  and  to  prevent  all  kinds  of  tres- 
passes and  breaches  of  contract.  They  are 
issued  to  prevent  misconduct  or  violence  by 
striking  employes  and  their  sympathizers.  A 
typical  illustration  of  this  class  of  injunctions  is 
the  injunction  issued  by  the  federal  court  during 
the  great  railroad  strike  in  Chicago  some  years 
ago.  This  injunction  enjoined  every  inhabitant 
of  the  Earth  from  interfering  with  trains  carrying 
United  States  mail,  and  the  writ  was  served  by 
posting  copies  on  cars  and  in  public  places  about 
the  city.  Much  the  same  method  was  adopted  in 
the  recent  teamsters'  strike  in  Chicago. 

All  persons  charged  with  the  violation  of  in- 
junctions are  attached  for  contempt  of  court. 
The  person  so  charged  is  denied  all  rights  guar- 
anteed by  the  constitution  in  ordinary  criminal 


FALLACIES  OF  THE  LAW.  95 

charges.  There  is  no  indictment,  no  jury  trial 
allowed,  no  right  to  be  confronted  by  witnesses, 
and  no  privilege  of  cross-examination.  He  must 
be  tried  by  the  very  judge  that  he  is  charged 
with  insulting,  upon  written  affidavits  drawn  up 
by  those  employed  against  him  and  sworn  to  by 
witnesses  who  may  not  understand  their  contents. 
If  convicted  by  this  summary  method  the  amount 
of  punishment  often  depends  upon  the  caprice  of 
the  court.  By  this  method  the  ordinary  forms  of 
law  are  suspended,  the  safeguards  for  the  pro- 
tection of  liberty  broken  down,  and  the  defendant 
is  made  subject  to  the  arbitrary  will  of  a  judge 
who,  from  the  very  nature  of  the  proceedings,  is 
likely  to  be  biased  against  him  and  not  give  him 
an  impartial  trial. 

All  this  is  done  because  of  a  fiction  of  law 
that  regards  acts  as  contempt  of  court  when  they 
were  never  intended  as  such.  Disobedience  of  a 
court's  order,  or  failure  to  comply  with  a  judge's 
wishes,  is  no  more  contemptuous  behavior  toward 
the  judge  than  a  violation  of  a  law  is  a  contempt 
toward  the  legislature  that  passed  it.  In  neither 
case  are  the  individuals  who  were  the  authors  of 
the  order  or  law  considered  at  all,  and  the  act 
converting  disobedience  into  a  personal  affront 
and  punishing  it  as  such  is  a  most  dangerous 


96  FALLACIES  OF  THE  LAW. 

perversion  of  the  facts  and  tends  in  the  direction 
of  enslaving  the  people. 

The  fictions  above  referred  to,  and  many  oth- 
ers that  may  be  cited,  are  attempts  on  the  part  of 
the  judges  to  make  or  amend  laws  so  as  to  have 
them  comply  with  their  notions  as  to  what  they 
ought  to  be.  If  the  word  citizen  in  the  constitu- 
tion of  the  United  States  can  be  stretched  to 
mean  a  corporation,  who  shall  fix  the  elasticity 
of  that  venerable  document  ?  If  any  act  which 
may  be  performed  by  a  person  can  be  made  a 
contempt  of  the  court  by  merely  calling  it  such, 
what  limit  is  there  to  the  coercive  powers  and 
expanding  jurisdiction  of  judges  ? 

Fiction  is  out  of  place  in  the  law.  Judges 
should  not  hold  to  be  true  that  which  everybody 
knows  is  false. 

The  ordinary  power  to  punish  for  contempt  is 
necessarily  reposed  in  judges  of  general  jurisdic- 
tion in  order  that  they  may  protect  their  persons 
and  their  officers  from  interference  while  in  the 
conduct  of  their  courts ;  and  as  its  name  implies 
a  disdainful  and  insulting  behavior,  it  undoubt- 
edly had  its  origin  in  efforts  made  to  punish 
those  acts  which  were  personal  affronts  to  the 
presiding  judge.  It  was  for  these  that  he  was 
permitted   summarily  to  arrest  and   punish  the 


FALLACIES  OF  THE  LAW,  97 

offender.  Where  acts  are  not  of  that  character, 
but  are  in  their  essence  mere  trespasses  or  in- 
fringements upon  the  rights  of  others,  no  reason 
exists  why  they  should  not  be  tried  and  punished 
in  the  same  manner  as  other  offenses.  It  has 
ever  been  the  tendency  of  power  to  extend  itself, 
and  so  the  encroachments  of  the  judiciary  upon 
the  liberty  of  the  people  has  progressed  until 
these  important  officers  assume  the  right  to 
obtrude  their  personalities  into  controversies  both 
civil  and  criminal.  Thus  have  they  become  more 
important  than  the  legislative  or  the  executive 
department  of  the  government.  If  by  use  of 
this  fiction  of  contempt  they  continue  to  grow  in 
power,  the  very  foundations  of  our  civil  rights 
will  be  swept  away.  Certainly  there  is  a  great 
need  for  curbing  this  species  of  lese  majesty. 


CHAPTER  IX. 

DEFECTS  IN  REMEDIES  PROVIDED  BY  LAW. 

Laws  conferring  rights  and  imposing  duties 
are  vain  if  they  do  not  provide  some  form  of 
redress  for  the  infringement  of  such  rights  and 
the  breach  of  such  duties.  A  very  conspicuous 
defect  in  the  laws  of  our  country  is  their  inade- 
quacy in  this  respect.  Some  of  these  defective 
features  will  now  be  pointed  out. 

I.  Simple  contracts  for  the  payment  of  money 
or  delivery  of  property.  No  system  of  redress  is 
sufficient  unless  the  one  who  has  been  injured  is 
compensated  for  the  financial  loss  which  he  has 
sustained.  If  in  a  suit  to  recover  on  a  simple 
contract  a  sum  of  money  agreed  to  be  paid  the 
suitor  must  lose  more  in  time  and  expense  to  get 
a  judgment  than  the  judgment  is  worth,  it  is 
clear  the  law  has  provided  no  real  remedy. 
What  would  we  say  of  a  mill  that  took  all  the 
product  for  grinding  the  grist  ?  Such  often 
occurs  in  suits  on  a  simple  contract.  The  sub- 
stance of  the  litigation  is  lost  to  the  successful 
party  because  it  has  cost  him  more  to  get  his 


FALLACIES  OF  THE  LAW.  99 

judgment  than  he  can  get  by  enforcing  it.  Laws 
should  permit  the  party  entitled  to  recover  to 
have  added  to  the  sum  originally  due  him  the 
value  of  his  time  and  the  use  of  the  money  while 
it  has  been  withheld  from  him  unjustlj',  and  all 
costs  and  expenses  necessary  to  conduct  the  liti- 
gation. The  laws  of  some  states  do  not  permit 
the  recovery  of  interest  on  the  money  so  wrong- 
fully withheld  unless  the  sum  has  become  due  on 
a  written  contract  or  on  a  demand  liquidated 
before  %  suit  was  brought,  or  the  defendant  has 
placed  some  obstruction,  otherwise  than  unjustly 
defending  the  suit,  in  the  way  of  collecting  the 
claim. 

2,  Suits  for  damages.  In  actions  to  recover 
damages  for  breach  of  contract  to  pay  money  the 
only  sum  that  can  be  recovered  in  most  states  is 
the  amount  agreed  to  be  paid,  with  legal  interest 
thereon,  which  is  usually  five  or  six  per  cent. 
The  plaintiff  may  have  needed  the  money  due 
him  for  a  special  purpose ;  he  may  have  entered 
into  the  contract  with  this  sole  purpose  in  view; 
he  may  have  been  unable  to  get  the  money  from 
any  other  source,  and,  relying  upon  the  defend- 
ant's promise,  been  placed  in  a  position  where 
the  failure  has  caused  his  ruin  financially:  the 
law  cares  not  for  these  damages,  or  the  special 


ICX>       FALLACIES  OF  THE  LAW. 

circumstances  which  have  made  the  failure  to  pay 
disastrous  to  him.  It  will  allow  him  no  more 
than  it  allows  any  one  who  had  lent  the  money 
to  get  interest  for  use  of  it.  It  regards  all  the 
plaintiff's  special  damages  as  too  remote  to  be 
considered.  Now  note  how  the  law  treats  an- 
other obligation,  less  definite  and  certain  in  its 
character. 

The  defendant  neglects  to  perform  a  duty 
which  the  law  imposes  upon  him  on  account  of 
his  relation  to  the  plaintiff.  In  consequence  of 
this  the  plaintiff  receives  a  personal  injury.  In 
such  a  case  the  law  allows  the  court  or  jury  to 
award  the  injured  party  compensation  for  loss 
of  time  and  expenses  incurred  on  account  of  his 
injuries;  it  allows  them  to  guess  as  to  how  long 
his  disability  will  continue,  and  what  amount  he 
may  be  compelled  to  spend  in  the  future  for 
medical  attendance,  nursing  and  medicine,  and  to 
award  him  what  they  imagine  these  expenses  and 
loss  will  be.  It  also  allows  them  to  consider 
what  pain  he  has  suffered  from  his  injuries,  and 
what  he  may  be  caused  to  suffer  in  the  future,  and 
to  award  him  such  a  sum  as  in  their  discretion 
will  compensate  him  for  this  pain.  The  loss  of 
earnings  sustained  at  the  time  of  the  trial,  and  the 
money  that  at  that  time  has  been  necessarily  ex- 


FALLACIES  OF  THE  LAW.       lOI 

pended  on  account  of  the  injuries  may  be  capable 
of  proof  to  some  degree  of  probability,,  although 
the  amount  the  plaintiff  Avould' have  earned  but 
for  his  disability  niust,-,aiway$';be,£?  is;iitte*r  of 
some  conjecture,  because  tiud  he  nbt  been' injured 
he  might  not  have  found  profitable  employment. 
But  the  length  of  time  that  his  disability  may 
continue  and  the  amount  of  earnings  which  he 
may  lose  on  account  of  such  disability,  and  the 
sum  he  may  need  to  expend  in  the  future  on  that 
account,  are  of  the  most  hazy  and  uncertain  char- 
acter. He  may  die  the  next  day  after  the  trial, 
from  some  cause  not  connected  with  his  injuries. 
He  may  acquire  an  occupation  in  which  the  disa- 
bility sustained  will  not  deter  him  from  receiving 
full  wages.  He  may  be  cured  by  some  new  dis- 
covery of  science,  or  he  may  get  well  without  the 
doctor's  aid.  So  many  circumstances  may  pre- 
vent a  continuation  of  his  losses  that  the  length 
of  their  duration  is  beyond  mortal  prevision.  To 
this  the  law  also  directs  the  jury  to  add  compen- 
sation for  pain  he  has  suffered  and  will  suffer  in 
the  future.  By  what  process  of  mental  action 
can  pain  be  measured  in  dollars  and  cents  ?  Can 
heart  throbs  be  given  weight  in  coin  ?  May 
pangs  be  measured  by  greenbacks,  at  so  much 
per  pang  ?     If  such  a  measurement  were  possible, 


I02        FALLACIES  OF  THE  LAW. 

the  evidence  of  the  number  of  heart  throbs  and 
painful  pulsations  is  freldbm  sufficiently  definite 
so  that  a  certain  Sum"  could  be  computed  even 
for.pasi"  su^ering,  and  there  is  no  basis  whatever 
for  computing  future  suffering.  What  is  the 
result  of  these  indefinite  rules  of  law?  It  is  this: 
By  the  heart-racking  pictures  which  the  attorney 
for  the  plaintiff  in  his  last  speech  may  paint  on 
the  walls  of  their  imagination  the  jury  are  in- 
flamed to  a  white  heat  in  sympathy  with  suffering, 
and  they  go  to  the  jury  room  and  guess  at  a  sum. 
The  amount  is  sometimes  small,  but  ordinarily 
it  is  more  than  the  average  man  can  accumulate 
in  a  lifetime.  One  man  on  the  jury  more  force- 
ful and  fluent  than  his  fellows  may  reduce  the 
sum  to  a  mere  trifle,  or  he  may  cause  it  to  reach 
to  colossal  proportions. 

Thus  with  a  strange  inconsistency  the  law  that 
is  niggardly  in  dealing  with  a  suitor  who  seeks 
to  recover  upon  a  definite  contract,  and  restricts 
him  to  simple  interest  for  his  damages  and  holds 
all  other  losses  too  remote,  allows  another  suitor 
in  the  same  court,  for  the  breach  of  a  duty  no 
more  sacred  and  much  less  definite,  to  wander 
into  dreamland  for  evidence  to  swell  his  damages. 

3.  Costs  of  suit.  The  laws  usually  include  in 
the  judgment  certain  items  of  expense  which  are 


FALLACIES  OF  THE  LAW.       1 03 

called  costs.  These  are  commonly  awarded  to 
the  plaintiff  in  all  cases  where  it  is  found  that  he 
is  entitled  to  recover  any  sum  whatever,  unless 
that  sum  had  been  tendered  to  him  before  the 
suit  was  brought,  and  awarded  to  the  defendant 
where  the  plaintiff  fails  to  recover  any  portion  of 
his  claim.  The  costs  thus  allowed  are  usually 
the  small  sums  paid  to  the  clerk  for  his  docket 
fee  and  to  the  sheriff  or  constable  for  serving  the 
summons  or  notice  of  the  suit.  Sometimes  they 
are  large  in  suits  in  chancery,  and  even  at  law, 
where  the  depositions  of  many  witnesses  have 
been  taken.  As  they  usually  contain  no  compen- 
sation to  the  successful  suitor  for  his  loss  of  time 
or  expenses  in  employing  an  attorney,  they  fall 
far  short  of  justice.  They  are  also  unjust  to  the 
defeated  party  where  he  has  acted  in  good  faith 
in  prosecuting  or  defending  the  suit.  So  difficult 
of  solution  are  questions  of  law  that  men  of  the 
greatest  learning  and  power  of  analysis  often  dis- 
agree widely,  and  where  such  questions  arise  and 
make  a  suit  at  law  necessary  to  settle  the  con- 
troversy no  reason  exists  why  one  of  the  parties, 
who  has  been  free  from  intentional  wrong,  should 
be  compelled  to  pay  all  the  costs  incurred  by  the 
other  in  prosecuting  or  defending  the  suit.  The 
outlays   in   costs   necessary  to   pay  the  court's 


I04       FALLACIES  OF  THE  LAW. 

officers  should  be  divided  equally,  and  all  other 
costs  and  expenses  made  by  each  party  should 
be  borne  by  the  party  incurring  them.  But 
where  it  appears  from  the  evidence  or  otherwise 
that  the  suit  has  been  brought  or  the  defense 
made  in  bad  faith,  the  successful  party  should 
recover  such  a  sum  as  will  make  him  whole  for 
the  wrongful  act  of  the  other.  To  the  costs  of 
the  court  should  be  added  a  reasonable  sum  for 
his  loss  of  time,  attorney's  fees,  and  other  ex- 
penses, and  the  whole  be  included  in  the  judg- 
ment in  his  favor.  Nothing  less  can  be  considered 
justice  where  the  plaintiff  intentionally  prosecutes 
a  spurious  claim  or  the  defendant  fraudulently 
urges  a  false  defense. 

4.  Exemplary  damages.  In  suits  for  damages 
caused  by  wrongful  acts  which  are  shown  to  have 
been  inspired  by  malice  the  freakish  law  makes 
another  picturesque  contortion.  It  allows  the 
jury  to  award  what  are  known  as  "exemplary 
damages."  These  are  designed  to  punish  the 
defendant,  and  are  in  addition  to  the  actual  loss 
sustained.  They  give  the  plaintiff  money  that  he 
is  not  entitled  to,  in  order  that  the  defendant  may 
be  sufficiently  punished  for  what  the  court  or 
jury  believe  were  malicious  motives.  The  plain- 
tiff having  been  made  whole  for  all  his  actual 


FALLACIES  OF  THE  LAW,        1 05 

loss,  the  additional  sum  vaz.y  be  regarded  as 
smart  money.  The  defendant  is  made  to  smart 
for  the  plaintiff's  benefit. 

The  law  usuallj'^  punishes  by  fines  and  im- 
prisonments, and  the  fines  go  into  the  public 
treasury.  But  vengeance  in  a  suit  of  this  kind 
belongs  neither  to  God  nor  to  the  state,  it  comes 
in  hard  cash  to  the  pocket  of  a  suitor.  The  prac- 
tice of  allowing  exemplary  dam.ages  is  not  in 
harmony  with  the  other  rules  of  the  law  and  is 
most  pernicious  for  three  reasons : 

First.  It  tends  to  provoke  a  spirit  of  revenge 
which  is  likely  to  cause  ill  feeling  and  disorder 
in  society.  No  man  pays  smart  money,  awarded 
to  punish  him  for  his  malicious  motives,  without 
having  his  malice  many  times  increased.  Every 
recollection  of  that  experience  inspires  his  hatred 
and  gives  him  a  desire  to  retaliate  against  his 
adversary.  Thus  is  the  very  object  sought  by  the 
law  defeated. 

Second.  It  teaches  injustice;  for  it  permits  the 
plaintiff  to  acquire  money  for  which  he  has  given 
nothing,  and  makes  the  court  and  jury  agents 
for  picking  the  pocket  of  one  member  of  the  com- 
munity for  the  enrichment  of  another.  Any 
scheme  which  allows  one  person  to  take  by  force 
money  from  another,  without  giving  value  re- 


I06       FALLACIES  OF  THE  LAW, 

ceived  or  as  compensation  for  loss  actually  sus- 
tained, is  unjust,  and  not  even  the  panoply  of 
the  government  or  the  solemnity  of  court  pro- 
ceedings can  deprive  it  of  its  evil  aspect. 

Third.  There  is  no  measure  by  which  the  jury 
can  accurately  fix  the  sum  essential  to  inflict  the 
punishment.  The  amount  they  award  depends 
upon  the  nature  and  characteristics  of  the  jury. 
If  they  are  vicious  and  revengeful,  they  may 
allow  a  large  sum;  if  they  are  kind  and  charita- 
ble, the  award  will  be  a  trifle.  Thus  the  punish- 
ment is  meted  out  by  the  hand  of  chance. 

If  the  lav/  would  allow  just  compensation  for 
all  losses  sustained,  including  payment  for  the 
time,  attorney's  fees  and  court  expenses  required 
to  secure  redress,  there  would  be  no  excuse  for 
permitting  the  jury  to  award  exemplary  damages. 
Where  punishment  is  provided  by  law,  there 
should  be  a  definite  limit,  so  that  one  person  will 
not  receive  more  punishment  than  another  for 
the  doing  of  the  same  act.  i 

5.  Defense  of  laches.  This  doctrine  should 
be  considered  as  a  part  of  the  law  of  negligence. 
Chancery  courts  have  invented  it  as  a  sort  of 
equitable  statute  of  limitations.  When  it  ap- 
pears that  a  suitor  who  has  long  been  aware  of 
his  rights  has  delayed  bringing  a  suit  to  enforce 


FALLACIES  OF  THE  LAW.        lOJ 

them,  and  his  delay  has  not  been  caused  by  sick- 
ness, disability,  absence  of  the  defendant  or 
other  facts  which  in  the  opinion  of  the  court  is  a 
sufficient  excuse,  and  the  defendant  has  in  the 
meantime  changed  his  position,  so  that  he  is  less 
able  to  make  a  defense  than  he  was  at  the  time 
the  cause  of  action  arose,  the  court  may  refuse, 
on  the  ground  of  "laches,"  to  grant  the  suitor 
any  relief.  Having  slept  upon  his  rights,  the 
chancery  court,  which  favors  only  the  vigilant, 
will  not  allow  him  to  awaken  and  assert  them 
after  a  lapse  of  a  long  period.  The  length  of 
time  necessary  to  constitute  such  a  delay  as  to 
make  one  guilty  of  laches  has  not  been  definitely 
determined;  it  depends  upon  the  special  circum- 
stances of  each  case,  and  the  view  the  court 
takes  of  them.  Thus  each  judge  becomes  a  law 
unto  himself  and  gives  relief  or  refuses  it  at  his 
discretion. 

This  doctrine  must  be  justified,  if  at  all,  upon 
the  notion  that  a  creditor  is  in  duty  bound  to  sue 
his  debtor  within  a  reasonable  time,  and  if  he 
does  not,  any  disadvantage  the  debtor  sustains 
may  defeat  the  creditor's  entire  claim,  as  a  sort 
of  punishment  for  the  breach  of  duty.  There  is 
nothing  in  the  relation  of  debtor  and  creditor 
from  which  such  a  duty  can  arise.     The  only 


Io8       FALLACIES  OF  THE  LAW. 

duty  that  arises  in  such  a  relation  is  the  duty  of 
the  debtor  to  pay  his  debt,  and  his  delay  in  doing 
this  should  not  be  a  reason  for  absolving  him. 
The  doctrine  is  therefore  unjust;  for  it  permits 
those  who  fail  to  discharge  their  just  obligations 
to  urge  their  own  default  as  a  defense  to  a  just 
claim.  If  there  is  any  time  within  which  suits 
must  be  brought,  the  period  should  be  made  defi- 
nite by  law,  so  that  persons  may  be  aware  of  it 
and  none  be  deprived  of  his  rights  by  the  caprice 
or  discretion  of  some  judge. 

6.  Defense  for  illegality.  Sometimes  parties 
who  are  ignorant  of  the  law  enter  into  contracts 
that  are  forbidden  by  it;  sometimes  such  contracts 
are  entered  into  when  one  of  the  parties  knows 
that  the  law  forbids  the  contract  and  willfully 
violates  it,  while  the  other  is  ignorant  that  the 
contract  is  thus  forbidden;  and  sometimes  both 
parties  intentionally  enter  into  a  contract  which 
they  both  know  is  forbidden  by  law.  Among  the 
illegal  contracts  frequently  entered  into  may  be 
mentioned  those  that  relate  to  gambling  transac- 
tions, notes  that  are  executed  on  the  sabbath  day, 
contracts  to  pay  for  intoxicating  liquor  to  be  used 
as  a  beverage  where  the  law  prohibits  the  sale  of 
such  liquor  for  that  purpose,  and  contracts  in- 
tended  to    hinder,  delay   or   defraud   creditors. 


FALLACIES  OF  THE  LAW.        1 09 

All  such  are  held  to  be  illegal,  and  if  a  suit  is 
brought  on  such  a  contract  to  enforce  it,  or  to 
recover  back  money  or  property  transferred 
under  it,  the  plaintiff  will  be  denied  any  relief 
whatever.  He  may  have  parted  with  his  entire 
fortune  under  the  contract  without  knowing  of 
its  illegal  character,  yet  the  court  turns  its  back 
and  refuses  to  recognize  him. 

When  the  contract  is  an  executory  one,  and 
neither  party  has  parted  with  anything  under  it, 
a  refusal  to  recognize  it  may  be  proper,  but  where 
one  party  is  ignorant  that  the  contract  is  illegal, 
and  has  been  induced  by  the  other  to  transfer  to 
him  money  or  property  in  pursuance  of  the  con- 
tract, a  refusal  of  the  law  to  recognize  it  is  very 
unjust  to  the  innocent  party.  Even  where  both 
parties  are  equally  guilty  of  an  intention  to  vio- 
late the  law  in  making  the  contract,  and  one  of 
them  has  parted  with  his  property  under  it,  to 
permit  the  one  who  has  acquired  the  property  to 
plead  illegality  of  the  contract  as  an  excuse  for 
repudiating  it  is  certainly  contrary  to  the  dictates 
of  an  enlightened  conscience. 

The  court  is  guilty  of  affectation  when  it  tells 
the  party  seeking  relief  that  justice  will  not  toler- 
ate his  presence  because,  forsooth,  he  has  vio- 
lated the  law.     Where  violations  of  the  law  are 


no       FALLACIES  OF  THE  LAW. 

to  be  punished  there  should  be  certain  definite 
penalties,  applying  alike  to  all  persons  equally 
guilty  of  the  violation.  Is  it  not  a  bad  manage- 
ment thus  to  fine  one  violator  the  entire  sum  he 
has  paid  on  account  of  the  illegal  contract  and 
reward  the  other  and  equally  guilty  party  by  al- 
lowing him  to  retain  the  entire  amount  ? 

The  courts  are  not  so  squeamish  in  refusing 
relief  to  the  violator  of  the  law,  providing  his 
violation  does  not  pertain  to  the  contract  in  con- 
troversy. The  worst  criminal  in  the  community 
may  bring  a  suit  against  the  purest  saint,  and 
neither  the  bad  character  of  the  one  nor  the  noble 
nature  of  the  other  will  be  permitted  to  turn  the 
scale  a  fraction  of  a  hair.  But  if  it  be  held  that 
in  making  the  contract  in  suit  a  law,  criminal  in 
its  nature,  has  been  violated,  though  the  knowl- 
edge of  the  violation  could  not  positively  be  dis- 
covered until  the  decision  was  made  by  the  highest 
court  to  which  the  case  could  be  taken,  and  the 
plaintiff  has,  in  good  faith  under  this  contract, 
transferred  the  accumulation  of  a  life  of  honest 
toil  and  it  has  thereby  come  into  the  possession 
of  the  greatest  criminal,  so  hypercritical  and 
delicately  sensitive  is  the  law  that,  because  of  this 
violation,  it  denies  the  plaintiff  any  relief  what- 
ever.    Does  not  the  law  in  this  respect  show  a 


FALLACIES  OF  THE  LAW.        HI 

lack  of  discrimination  ?  Would  it  not  be  more 
sensible  to  compel  the  doing  of  justice  between 
the  parties  and  then  punish  them  equally  for  vio- 
lating the  law  ? 

7.  Suits  to  correct  mistakes  in  contracts  and 
conveyances.  All  persons  are  liable  to  mistakes, 
even  in  dealing  with  familiar  matters.  Any 
system  of  jurisprudence  which  does  not  make 
allowances  for  relief  against  the  effects  of  such 
mistakes  when  they  have  been  clearly  shown  is 
sadly  deficient.  When  such  a  mistake  has 
caused  a  contract  or  conveyance  to  be  made  dif- 
ferent from  what  was  intended,  there  should  be 
some  method  for  correcting  the  mistake.  Our 
laws  recognize  two  kinds  of  mistakes.  They  are 
called  mistakes  of  fact  and  mistakes  of  law.  For 
the  first  the  law  has  great  charity  and  is  quick  to 
relieve  any  one  who  has  been  injured  thereby 
without  any  fault  of  his  own.  If  one  kills  a 
neighbor,  supposing  him  to  be  a  burglar,  he  is 
guilty  of  no  crime.  If  one  is  induced  to  enter 
into  a  contract  by  a  material  mistake  relative  to 
the  character  of  the  thing  contracted  for,  the 
court  will  relieve  him  from  his  contract.  But  if 
the  mistake  be  one  of  law,  the  rule  is  very  differ- 
ent. No  amount  of  ignorance  of  law  will  be 
allowed  as  an  excuse  for  a  crime,  or  afford  relief 


112        FALLACIES  OF  THE  LAW. 

from  a  contract  or  conveyance.  The  law  pre- 
sumes that  every  one  is  familiar  with  it.  This 
presumption  is  certainly  not  true.  No  one  knows 
all  the  law,  and  only  a  small  portion  of  it  exists 
in  a  form  in  which  it  can  be  known.  There  is  no 
^  real  distinction  between  a  law  that  can  be  known 
and  any  other  fact  that  can  be  known.  If  it  be 
just  to  permit  ignorance  of  facts  to  be  an  excuse, 
and  thus  allow  the  ignorant  to  escape  the  conse- 
quence of  their  acts,  why  should  not  ignorance  of 
the  law  also  be  an  excuse  ? 

If  one  in  possession  of  facts  relative  to  a  piece 
of  property  which  he  wishes  to  sell  misrepresents 
its  character  and  thereby  induces  another  to  pur- 
chase it,  and  the  purchaser  has  at  hand  no  means 
of  information  to  detect  the  falsity  of  the  state- 
ment, the  law  permits  the  defrauded  party  to 
avoid  the  contract;  but  if  one  who  has  knowledge 
of  a  law  of  which  another  is  ignorant  falsely 
states  the  law  and  induces  the  ignorant  to  rely 
upon  his  misstatement,  and  thereby  obtains  his 
property,  the  law  a^ords  no  remedy  whatever  to 
the  defrauded  party.  Is  not  a  law  which  allows 
itself  to  be  thus  misrepresented  for  the  purpose 
of  defrauding  another  a  disgrace  to  the  jurispru- 
dence of  an  intelligent  people  ?  To  presume 
that  all  persons  know  the  law  may  be  necessary 


FALLACIES  OF  THE  LAW,        II3 

so  far  as  putting  the  burden  upon  the  person 
claiming  a  mistake  to  prove  his  ignorance,  but  it 
is  at  best  a  violent  presumption.  Where  it  is 
clearly  shown  to  the  satisfaction  of  the  court  or 
jury  in  a  civil  case  that  a  party  is  likely  to  lose 
on  account  of  relying  upon  a  mistake  of  law, 
whether  arising  from  the  misrepresentations  of 
the  other  party  or  the  mistake  of  his  legal  advi- 
ser, the  court  should  interfere  and  prevent  the 
loss. 

In  criminal  matters  a  different  situation  arises. 
There  are  some  acts  whose  criminal  nature  is  ap- 
parent to  every  one  having  knowledge  of  right 
and  wrong.  But  there  are  many  others  which 
involve  no  moral  turpitude,  and  their  criminality 
consists  solely  in  the  fact  that  they  have  been 
forbidden  by  the  enactment  of  a  legislature  or 
the  ordinance  of  a  city,  and  no  one  who  has  not 
made  a  special  study  of  these  enactments  and 
ordinances  can  have  a  full  knowledge  of  the  acts 
thus  forbidden.  In  such  a  case  the  accused 
should  be  permitted  to  purge  himself  of  a  crimi- 
nal intent  by  proving  his  lack  of  knowledge. 
His  violation  is  only  accident,  and  a  law  which 
does  not  discriminate  between  accidents  and  in- 
tentional violations  lacks  one  of  the  principal 
ingredients  of  a  just  criminal  statute. 


CHAPTER  X. 

DEFECTIVE   JUDICIAL    MACHINERY. 

I.  Written  pleadings.  When  one  claims  that 
another  has  wronged  him,  and  he  seeks  redress, 
he  applies  to  the  courts  created  by  law  for  a  legal 
remedy.  This  application  is  called  a  suit;  the 
person  bringing  it,  the  plaintiff  or  complainant; 
the  one  sued,  the  defendant.  A  case  might  arise 
where  the  party  thus  sued  would  have  no  knowl- 
edge of  the  nature  of  the  complaint  against  him 
unless  informed  of  it  in  writing,  but  such  a  situa- 
tion seldom  occurs.  If  the  complaining  party 
refuses,  on  request  of  the  defendant,  to  give 
information  as  to  the  cause  of  his  complaint,  the 
court  can  order  him  to  do  so,  and  refuse  to  hear 
the  case  until  the  defendant  has  had  a  chance  to 
get  ready  and  present  his  defense.  This  method 
of  informing  each  party  of  the  claims  of  the  other 
appears  very  simple,  but  there  has  been  insti- 
tuted a  system  of  written  pleadings  designed  to 
accomplish  that  result.  These  pleadings  have 
been  refined  upon  until  they  have  become  very 
complicated.     The  preparation  of  such  plead- 


FALLACIES  OF  THE  LAW.        115 

ings  has  become  a  fine  art  which  is  often  fraught 
with  great  difficulties  and  frequently  requires  a 
most  careful  attention  to  technical  rules  of  form 
and  delicate  distinctions  in  substance.  What  is 
known  as  the  common -law  system  of  written 
pleadings  has  been  the  growth  of  many  centu- 
ries. It  was  a  part  of  the  common  law  of  Eng- 
land, and  was  in  force  in  this  country  prior  to  the 
Revolution.  When  our  independence  was  estab- 
lished we  retained  it  with  the  English  common 
law.  According  to  this  system  the  plaintiff  first 
filed  a  written  statement  of  his  claim,  called  a 
declaration.  This  the  defendant  answered  by  a 
written  statement  of  his  defense,  called  a  plea. 
The  plaintiff  might  then  reply  to  this  plea  by  a 
statement  called  a  replication.  To  this  replica- 
tion the  defendant  might  rejoin  by  a  statement 
called  a  rejoinder.  To  this  rejoinder  the  plaintiff 
might  file  a  statement  called  a  surrejoinder.  To 
this  surrejoinder  the  defendant  might  file  a  rebut- 
ter, and  the  plaintiff  to  this  rebutter  might  file  a 
surrebutter.  Thus  the  parties  might  continue 
indefinitely  to  wrangle  in  writing  with  each  other. 
The  statements  that  might  be  made  subsequent 
to  the  surrebutter  were  so  seldom  used  that  they 
acquired  no  names.  There  is  another  pleading 
called  a  demurrer  with  which  either  party  might 


Il6       FALLACIES  OF  THE  LAW. 

attack  the  pleading  of  the  other.  This  demurrer 
amounts  to  a  claim  that  if  the  facts  alleged  in 
the  pleading  assailed  were  true,  still  they  would 
not  be  sufficient  to  constitute  a  legal  claim  or 
defense.  When  in  the  progress  of  the  pleadings 
a  condition  was  reached  where  one  party  made  a 
precise  statement  of  fact  according  to  the  form 
provided  by  law,  and  it  was  unequivocally  denied 
by  the  other,  there  was  an  issue  formed.  This 
issue  either  party  was  entitled  to  have  a  jury 
called  to  try. 

This  system  is  quite  scientific  when  fully  under- 
stood by  bench  and  bar,  and  was  useful  in  England 
when  it  came  into  being.  The  courts  at  that  time 
met  but  seldom.  The  distance  the  parties  must 
go  with  their  witnesses  to  attend  them  was  often 
great,  travel  difficult  and  expensive,  and  it  was 
very  necessary  for  each  to  know  exactly  what 
matters  were  actually  in  dispute,  so  that  he 
could  decide  what  witnesses  might  be  needed. 
When  in  any  kind  of  intellectual  contest  ceremo- 
nies are  provided,  the  tendency  has  always  been 
to  lose  sight  of  the  real  matter  in  dispute  in  a 
multitude  of  controversies  relating  to  the  appli- 
cation of  the  ceremonies.  And  so  the  centuries 
have  developed  a  great  number  of  arbitrary  rules 
relating  to  these  pleadings,  and  these  have  often 


FALLACIES  OF  THE  LAW.       \\^ 

caused  the  merits  of  the  suit  to  be  overlooked  in 
the  controversies  over  the  pleadings. 

The  legislatures  of  many  states  have  made 
modifications  of  the  common  law  relative  to 
pleadings.  In  a  few  the  system  has  been  en- 
tirely abolished  and  a  code  adopted  providing 
for  written  pleadings  of  a  different  sort,  but 
everywhere  a  great  number  of  questions  fre- 
quently arise  for  decision  relative  to  the  forms 
and  sufficiency  of  written  pleadings.  The  rules 
require  that  all  the  facts  necessary  to  constitute 
a  cause  of  action  or  defense  be  stated,  and  the 
evidence  offered  by  each  party  must  correspond 
with  the  facts  alleged  in  the  pleadings.  On  ac- 
count of  this  rule  the  plaintiff  usually  states  his 
claim  in  many  different  ways,  each  statement 
being  called  a  count.  Not  quite  certain  what 
he  will  be  able  to  prove,  he  makes  as  many  differ- 
ent statements  of  his  claim  as  his  imagination 
can  suggest,  hoping  that  he  will  be  able  to  prove 
some  of  the  statements  of  it  to  be  true. 

The  writer  once  tried  a  case  wherein  the 
plaintiff  sued  to  recover  against  an  insurance 
company  for  changing  its  plan  of  insurance  and 
raising  the  rate  of  premium  on  his  life  policy. 
The  plaintiff  stated  his  claim  in  seventy-five  dif- 
ferent counts.     These  covered  about  one  thou- 


Il8       FALLACIES  OF  THE  LAW. 

sand  pages  of  typewriting.  Imagine  several  pleas 
filed  to  each  of  these  seventy-five  counts,  several 
replications  filed  to  each  plea,  several  rejoinders 
to  each  replication,  and  so  on,  and  you  will  un- 
derstand how  very  complicated  a  small  suit  may 
be  made  by  this  system  of  written  pleadings. 
Often  more  time  is  spent  in  discussing  these  than 
should  be  required  to  try  the  suit  on  its  merits. 
But  the  great  waste  of  time  and  labor  inciden- 
tal to  written  pleadings  is  not  their  worst  feature. 
The  nice  correspondence  required  between  these 
pleadings  and  the  evidence  introduced  to  sustain 
them  often  causes  disaster  to  a  just  claim.  Even 
after  a  cause  has  been  fairly  tried,  and  the  plain- 
tiff has  shown  himself  entitled  to  recover,  and  a 
verdict  rendered  and  judgment  entered  thereon 
in  his  favor,  he  may  lose  because  of  the  insuffi- 
ciency of  the  allegations  in  his  declaration  to 
support  the  judgment.  Not  long  ago  a  judgment 
of  $12,000  was  reversed  by  the  Supreme  Court  of 
Illinois  because  that  court  considered  the  state- 
ments in  the  declaration  insufficient  to  constitute 
a  cause  of  action.  The  plaintiff  had  sustained 
a  personal  injury,  disabling  him  for  life.  His 
attorney  was  a  lawyer  of  unusual  skill  in  such 
matters;  the  case  was  tried  in  the  circuit  court, 
and  that  court  held  the  declaration  to  be  suffi- 


FALLACIES  OF  THE  LAW.       1 19 

cient  and  gave  judgment  on  the  verdict.  The 
Appellate  Court  affirmed  the  judgment.  The  Su- 
preme Court,  however,  was  of  the  opinion  that 
the  facts  out  of  which  the  law  created  the  duty 
were  not  sufficiently  set  forth  in  the  declaration; 
and  so  the  court  set  aside  the  judgment.  The 
time  for  beginning  a  new  suit  had  expired  and 
the  plaintiff  was  thus  deprived  of  any  compensa- 
tion for  his  injury.  He  was  beaten  not  because 
of  lack  of  evidence  to  support  his  claim,  but 
merely  because  of  technical  defects  in  his  decla- 
ration. This  is  but  one  of  many  cases  where 
justice  has  miscarried  because  of  the  rules  relat- 
ing to  these  written  pleadings.  The  pages  of  our 
reports  contain  very  many  such  cases  wherein 
judgments  have  been  reversed  because,  forsooth, 
the  upper  courts  have  construed  the  pleadings 
differently  from  the  trial  courts  and  have  found  a 
lack  of  mechanical  fitness  between  the  allega- 
tions in  them  and  the  facts  proved.  If  the 
object  of  these  pleadings  is  to  notify  the  oppo- 
site party  in  advance  as  to  the  character  of  the 
claim  which  he  must  prepare  to  meet,  and  he 
is  taken  by  surprise,  his  remedy  would  reason- 
ably be  confined  to  asking  for  further  time  to 
prepare  for  trial.  When  the  testimony  is  all 
in,  a  verdict  rendered  and   judgment  entered 


I20       FALLACIES  OF  THE  LAW. 

thereon,  the  effect  of  written  pleadings  should 
be  at  an  end. 

Courts  are  now  frequent,  the  distances  to  them 
usually  short,  and  the  means  of  travel  swift  and 
inexpensive.  The  circumstances  which  origi- 
nally made  written  pleadings  desirable  no  longer 
have  being.  In  most  cases  the  party  sued  knows 
what  the  suit  is  about  without  any  statement. 
Except  in  rare  instances  he  now  gets  no  import- 
ant information  that  he  could  not  as  easily  have 
acquired  without  the  written  pleadings.  Why 
then  would  it  not  be  sufficient  to  state  in  the 
summons  or  notice  of  the  suit  the  amount  the 
plaintiff  claims  to  be  due  him  and  the  nature  of 
that  claim?  If  the  defendant  requires  further 
light  on  the  subject,  why  should  he  not  ask  the 
plaintiff  by  letter  or  otherwise  to  state  more  spe- 
cifically the  nature  of  the  claim  ?  Seldom  would 
there  be  any  difficulty  in  getting  ready  for  trial 
under  such  circumstances,  and  if  any  did  arise 
the  court  could  easily  protect  the  party  from^^ 
injury  by  allowing  him  further  time.  We  would 
then  be  rid  of  the  tedious  labor  and  danger  of 
disaster  which  come  from  attempts  to  comply 
with  the  rules  relating  to  written  pleadings. 

2.   The  jury  system.     A  hinderance  of  even 
greater  importance  than  the  incubus  of  written 


FALLACIES  OF  THE  LAW.       121 

pleadings  is  that  part  of  our  judicial  machinery 
called  the  jury.  In  Frailties  of  the  Jury,  a  pre- 
vious volume  of  this  series,  is  exhibited  specifi- 
cally many  of  the  faults  of  the  jury  system,  and 
the  reader  is  referred  to  that  volume  for  a  full 
discussion  of  the  subject. 

The  jury  is  composed  of  twelve  men  unlearned 
in  the  law,  unfamiliar  with  its  language,  and 
unused  to  court  proceedings.  They  are  selected 
on  account  of  their  ignorance  of  such  matters. 
They  are  asked  to  hear,  understand  and  remem- 
ber all  the  proceedings  and  evidence  during  a 
trial  of  many  da3's,  and  to  comprehend  and  apply 
many  written  instructions  given  to  them  by  the 
court.  These  instructions  are  couched  in  legal 
phrases  and  are  often  of  the  most  abstruse  char- 
acter. After  being  agitated  and  played  upon  by 
the  speeches  of  trained  advocates  they  are  locked 
in  a  room  and  required  to  agree  unanimously 
upon  a  verdict.  They  have  had  no  training  for 
the  task  imposed,  are  confused  and  bewildered 
by  the  strange  proceedings,  have  had  no  oppor- 
tunity to  take  or  preserve  notes  of  the  evidence, 
and  usually  have  but  a  hazy  recollection  of  what 
has  been  submitted  to  them.  Most  are  novices 
in  judging  credulity  and  in  every  way  unfitted  to 
sift  a  mass  of  lies  and  ascertain  the  truth.    Their 


122        FALLACIES  OF  THE  LAW. 

unanimous  verdict  is  usually  unanimous  in  form 
only.  It  is  often  reached  after  a  long  and  bitter 
wrangle  in  which  those  of  the  strongest  wills 
and  loudest  voices  have  crowed  down  and  brow- 
beaten their  weaker  associates  into  an  agreement. 
Often  the  jury  are  exhausted  by  the  long  confine- 
ment in  the  uncomfortable  quarters  before  this 
result  is  reached.  This  spurious  product  of  coer- 
cion and  compromise  called  a  verdict  seldom 
represents  the  honest  judgment  of  any  one  on 
the  jury,  and  often  bears  no  resemblance  to  jus- 
tice. For  some  error  in  the  proceedings  it  is 
liable  to  be  set  aside  by  the  court  trying  the  case 
or  by  the  reviewing  court  to  which  the  case  is 
taken.  Then  a  new  trial  is  had,  before  another 
jury.  The  same  proceedings  are  repeated  again 
and  again,  causing  enormous  expense  and  loss  of 
time  to  the  parties,  until  patience  is  exhausted 
and  they  settle  the  case  rather  than  suffer  any 
more  losses  in  trying  to  get  a  just  judgment. 

The  twelve  men  on  the  jury  are  usually  taken 
from  occupations  in  which  they  are  experts,  and 
in  which  their  services  are  valuable  to  themselves 
and  the  community.  They  are  forced  to  neglect 
their  own  affairs  and  made  captives  of  the  law  to 
take  part  in  a  proceeding  where  their  services  are 
practically  worthless.     Is  it  not  an  egregious 


FALLACIES  OF  THE  LAW.       123 

mistake  thus  to  force  men  to  perform  a  task  for 
which  they  possess  no  skill  or  training  ?  They 
surely  can  be  of  no  real  assistance  to  judges  who 
possess  expert  knowledge  and  skill  for  the  par- 
ticular duty. 

This  jury  institution  is  accountable  for  most 
of  the  other  obstructions  that  clog  the  judicial 
machinery.  Were  it  not  for  it  the  reasons  urged 
for  written  pleadings  would  mainly  disappear 
and  there  would  no  longer  be  any  necessity  for 
forms  of  action.  The  division  of  the  different 
suits  into  the  two  branches  called  law  and  chan- 
cery would  be  meaningless.  The  main  distinc- 
tion between  such  cases  is  the  right  to  a  jury 
trial  in  the  suits  at  law,  which  is  denied  in  chan- 
cery. We  have  for  centuries  conceded  that  the 
suits  which  we  call  chancery  may  be  safely  tried 
by  a  single  judge  without  a  jury.  The  amount 
involved  in  these  chancery  suits  is  as  large,  and 
the  questions  of  fact  arising  on  the  evidence  are 
as  intricate,  as  those  involved  in  law  actions. 
Yet  we  cling  with  dogged  persistency  to  the  idea 
that  a  jury  is  necessary  to  determine  properly 
the  most  trifling  matter  if  the  suit  is  not  in  chan- 
cery. 

The  abolition  of  the  jury  in  civil  cases  would 
enable  us  to  wipe  out  this  vexatious  distinction 


124       FALLACIES  OF  THE  LAW. 

between  law  and  chancery  practice.  There  would 
no  longer  be  a  necessity  for  keeping  up  a  chan- 
cery court  for  the  trial  of  cases  which  are  not 
adapted  to  be  heard  by  a  jury.  The  same  tribu- 
nal could  at  all  times  try  all  manner  of  contro- 
versies, using  the  special  skill  that  comes  from 
long  practice,  and  could  render  judgments  accord- 
ing to  the  very  right  in  the  matter.  When  the 
controversies  were  too  important  to  be  trusted 
to  one  judge,  other  judges  might  sit  with  him. 
Certainly  three  judges  ought  to  be  sufficient  to 
try  the  most  intricate  controversy.  Cases  on 
appeal  might  then  be  reviewed  before  a  larger 
bench,  not  to  find  fault  in  the  record,  but  to  de- 
cide the  case  on  its  real  merits.  Then  no  longer 
would  lawsuits  be  determined  by  trifles.  Never 
again  would  the  suitor  be  thrown  out  of  court  in 
disgust  because  of  some  defect  in  his  pleading. 
Never  again  would  the  finding  be  set  aside  be- 
cause a  jury  had  been  improperly  instructed  or 
proper  instructions  had  been  refused,  or  because 
improper  evidence  had  been  admitted.  There 
would  be  no  more  mistrials  on  account  of  the  dis- 
agreement of  the  jury  or  the  misconduct  of  the 
jury,  or  the  misconduct  of  counsel  in  addressing 
them.  Justice  would  never  again  be  defeated 
because  the  plaintiff's  attorney  had  mistaken  the 


FALLACIES  OF  THE  LAW.        1 25 

side  of  court  to  approach  and  had  brought  his 
suit  at  law  when  he  should  have  brought  it  in 
chancery,  or  brought  it  in  chancery  when  it  was 
cognizable  in  law  only.  Never  again  would  a 
just  cause  be  lost  because  of  lack  of  precise  me- 
chanical accuracy  between  the  pleadings  and  the 
proofs.  No  longer  would  the  lower  and  higher 
courts  play  battledoor  and  shuttlecock,  throwing 
the  case  back  and  forth  on  account  of  errors  in 
the  proceedings,  until  even  the  winning  suitor 
actually  loses  his  case  because  of  expenses  in- 
curred. All  the  immense  mass  of  false  work 
which  the  centuries  have  built  about  court  pro- 
ceedings, and  which  tends  to  make  the  trial  of 
suits  complex  and  difficult,  would  be  torn  away, 
and  the  simple  act  of  ascertaining  the  truth  and 
applying  the  law  would  be  performed  by  compe- 
tent judges  selected  and  trained  for  that  purpose. 


CHAPTER  XL 

DEFECTIVE  JUDICIAL  MACHINERY — Continued. 

3.  An  important  obstruction  in  the  enforce- 
ment of  the  criminal  law  is  the  necessity  of  pro- 
curing an  indictment  of  the  accused  by  the  grand 
jury  before  he  can  be  put  on  trial  on  serious 
criminal  charges.  This  requirement  is  even  a 
greater  clog  in  the  criminal  jurisprudence  than 
the  requirement  of  written  pleadings  in  civil  suits. 
This  grand  jury  has  from  fifteen  to  twenty-four 
members,  and  twelve  or  more  must  vote  for  the 
indictment  of  the  accused  before  he  can  be  prose- 
cuted. They  are  not  expected  to  hear  evidence 
in  his  behalf,  but  only  testimony  against  him. 
They  are  intended  by  law  to  be  a  kind  of  smelling 
committee  who  will  ferret  out  secret  crimes  which 
no  person  appears  to  prosecute.  But  they  usu- 
ally consider  no  matters  except  such  as  are  pre- 
sented to  them  by  the  prosecuting  attorney,  and 
hear  only  the  witnesses  he  brings  before  them. 
They  act  under  his  advice  in  voting,  and  when 
an  indictment  is  found  he  prepares  the  document 
and  their  foreman  indorses  it  as  a  true  bill. 


FALLACIES  OF  THE  LAW.        127 

This  indictment  is  a  mere  pleading  in  which 
the  prosecuting  attorney,  representing  the  state 
and  using  the  name  of  the  grand  jury  as  his 
agency,  charges  the  defendant  with  the  commis- 
sion of  a  crime.  The  rules  of  law  that  apply  to 
the  form  and  substance  of  an  indictment  are 
many  and  strict,  and  very  thin  and  delicate  are 
the  distinctions  made  by  courts  in  defining  and 
construing  the  words  used  in  them.  This  makes 
the  framing  of  one  very  diflficult.  A  slight  defect 
may  cause  it  to  be  quashed  either  by  the  trial 
court  or  by  the  court  to  which  the  case  may  be 
taken  on  appeal. 

If  any  legal  ceremony  relative  to  it  is  omitted; 
if  it  lacks  in  any  particular  to  state  clearly,  defi- 
nitely and  certainly  the  exact  ingredients  of  the 
offense ;  if  it  fails  to  allege  that  the  act  was  com- 
mitted within  the  jurisdiction  of  the  court,  or  to 
allege  facts  showing  that  it  is  not  barred  by  the 
statute  of  limitations,  then  the  indictment  may 
be  quashed.  Sometimes  questions  as  to  the  suf- 
ficiency of  the  indictment  are  not  decided  until 
so  long  after  the  commission  of  the  offense  that 
the  guilty  party  can  not  be  prosecuted  on  a  new 
indictment.  Then  if  the  indictment  is  quashed 
the  defendant  is  entitled  to  be  set  free,  because 
an  indictment  can  not  be  amended  in  a  matter  of 


128       FALLACIES  OF  THE  LAW. 

substance.  This  method  of  defeating  criminal 
prosecutions  is  said  to  prevail  because  the  law 
guards  the  liberty  of  the  accused  with  jealous 
care.  The  jealous  care  of  the  law  ought  to  relate 
to  the  merits  of  the  case.  The  law  should  be 
careful  to  give  to  every  person  charged  a  fair 
trial  by  a  competent  court  and  under  sensible 
rules.  The  main  office  of  the  indictment  is  to 
notify  the  accused  of  the  accusation  against  him 
and  give  him  an  opportunity  to  prepare  for  trial. 
Why  should  not  the  law  permit  it  to  be  amended 
when  found  defective?  If  the  defendant  is  not 
then  prepared  for  trial  on  the  amended  indict- 
ment, further  time  might  be  given. 

If  the  indictment  is  held  sufficient  and  the 
trial  proceeds,  it  flounders  through  another  maze 
of  difficulties.  The  defendant  can  be  convicted 
of  only  the  precise  crime  charged  in  the  indict- 
ment, or  some  crime  of  a  less  degree  included 
within  the  one  charged.  So  very  strict  is  the 
law  in  this  respect  that  the  Illinois  Supreme 
Court  discharged  a  defendant  who  was  indicted 
for  attempting  to  obtain  money  by  a  confidence 
game  because  the  evidence  established  that  he 
did  obtain  the  money.  This  followed  a  decision 
in  another  state,  where  a  defendant  indicted  for 
an  attempt  to  commit  rape  was  acquitted  because 


FALLACIES  OF  THE  LAW.        1 29 

it  was  shown  that  he  succeeded.  Every  feature 
of  the  evidence  requires  this  precision,  and  the 
labyrinth  of  strict  rules  through  which  such  a 
cause  must  proceed  to  secure  a  conviction  makes 
the  conviction  of  even  a  notorious  criminal  a  task 
of  great  difficulty  when  his  defense  is  in  the 
hands  of  a  skillful  lawyer.  Because  of  these  dif- 
ficulties many  hardened  criminals  go  unpunished 
after  the  state  has  expended  large  sums  in  trying 
to  convict  them.  More  than  half  the  efforts  made 
to  punish  wealthy  law-breakers  are  rendered 
abortive  because  of  the  clumsy  character  of  our 
criminal  jurisprudence.  Sometimes  it  is  the 
indictment  which  is  defective;  sometimes  the 
evidence  does  not  fit  the  indictment;  sometimes 
the  defeat  of  the  state  is  due  to  the  fact  that  the 
jury  is  incompetent  or  has  been  swayed  by  sym- 
pathy or  corrupted  by  bribe  money. 

The  grand  jury  is  certainly  a  useless  appli- 
ance. Its  members  ordinarily  possess  no  skill  for 
their  task.  They  know  neither  the  laws  nor  the 
ingredients  of  the  offenses  which  they  are  asked 
to  investigate,  and  seldom  understand  the  legal 
meaning  of  the  words  in  the  indictment.  They 
are  usually  mere  tools  in  the  hands  of  the  prose- 
cuting attorney,  and  are  mainly  useful  to  him  as 
an  excuse  for  prosecuting  influential  violators. 


I30       FALLACIES  OF  THE  LAW, 

We  are  fearfully  afHicted  by  a  legacy  from 
antiquity.  When  sparsely  settled  Britain  was 
ruled  by  brutal  kings  who  placed  their  tools  upon 
the  bench  and  used  the  laws  for  pillage  and 
revenge,  much  of  our  criminal  jurisprudence  was 
invented.  The  grand  jury  then  gave  some  pro- 
tection to  the  common  people  against  the  machi- 
nations of  these  monarchs.  But  circumstances 
are  changed.  The  people  attempt  to  rule  them- 
selves, and  with  such  laxity  that  those  who 
violate  the  law  are  seldom  prosecuted  unless  a 
popular  demand  exists,  and  even  then  the  prosecu- 
tion often  fails  because  of  lack  of  energy.  Surely 
we  need  no  blocks  to  push  the  prosecution  from 
the  track  or  brakes  to  make  it  move  more  slowly. 
This  ancient  system  is  no  longer  suited  to  our 
needs.  Its  grand  and  petit  juries  are  both  anti- 
quated, and,  like  the  vermiform  appendix,  exist 
but  as  a  source  of  irritation  and  expense. 

In  the  place  of  this  grand  jury  the  law  should 
provide  a  board  of  persons  who  are  familiar  with 
the  criminal  statutes  of  the  state,  the  rules  of 
evidence  and  the  quantity  of  proof  necessary  to 
secure  a  conviction.  Instead  of  sitting  in  secret 
session  as  a  sort  of  star-chamber  inquisition  and 
hearing  but  one  side  of  a  complaint,  the  session 
of  the  board  should  be  public,  unless  special  cir- 


FALLACIES  OF  THE  LAW.       131 

cumstances  require  concealment.  They  should 
give  the  accused  an  opportunity  to  tell  his  story 
and  have  his  witnesses  heard  if  he  desires.  Three 
members  ought  to  be  enough  for  this  board.  Two 
of  them  should  be  convinced  that  a  crime  has 
been  committed  and  that  it  is  probable  the  party 
charged  has  committed  it  before  he  is  required 
to  submit  to  a  trial.  If  an  indictment  found  by 
them  be  not,  in  the  opinion  of  the  court,  suffi- 
cient to  inform  the  accused  of  the  nature  of  the 
charge,  it  should  be  amended  and  the  accused 
given  ample  time  to  prepare  for  trial.  If  on  the 
trial  the  accused  is  found  guilty  of  any  crime 
growing  out  of  the  transactions  investigated,  he 
should  be  convicted. 

All  rules  should  be  directed  to  the  one  aim  of 
giving  the  defendant  a  fair  trial  and  full  oppor- 
tunity to  present  all  his  evidence  before  a  deci- 
sion is  made.  To  accomplish  this  it  is  not 
necessary  that  every  step  be  over  pitfalls  calcu- 
lated to  cause  the  prosecution  to  stumble.  Such, 
rules  serve  only  to  enable  the  guilty  to  escape. 
The  innocent  can  be  amply  protected  without 
them.  All  that  innocent  persons  need  or  desire 
is  a  fair  trial.  This  is  more  likely  to  be  pro- 
cured before  trained  judges  under  sensible  rules 
than  from  untrained  and  easily  swayed  jurors 


132        FALLACIES  OF  THE  LAW. 

surrounded  by  arbitrary  and  senseless  technicali- 
ties which  tend  to  prevent  a  trial  upon  the  merits 
of  the  charge. 

4.  Limits  to  jurisdiction  of  courts.  Another 
source  of  trouble  in  judicial  proceedings  is  the 
great  variety  of  courts.  The  judicial  power  is 
split  into  fragments,  and  only  a  small  portion  is 
intrusted  to  each  court.  This  must  be  exercised, 
if  at  all,  within  limits  prescribed  by  the  constitu- 
tion or  laws  passed  in  pursuance  thereof.  There 
are  justice  courts  that  have  jurisdiction  of  some 
kinds  of  controversies  if  the  amount  involved 
does  not  exceed  a  certain  sum.  There  are  city 
courts  and  municipal  courts,  with  jurisdiction  of 
some  kinds  of  claims  and  amounts  within  specific 
territorial  limits.  There  are  other  courts  that 
may  try  all  kinds  of  suits,  but  these  are  restrict- 
ed in  their  jurisdiction  to  a  prescribed  territory 
within  which  the  parties,  or  some  of  them,  must 
reside  or  be  served.  In  consequence  of  this 
division  it  frequently  happens  that  a  court  in 
which  a  suit  is  brought  holds  that  it  has  jurisdic- 
tion and  on  appeal  it  is  held  not  to  have  it.  The 
plaintiff  is  then  turned  out  of  court  empty  handed 
with  a  large  bill  of  costs  to  pay.  Sometimes  it 
has  taken  so  long  to  determine  the  question  that 
the  right  to  bring  another  suit  is  barred  by  the 


FALLACIES  OF  THE  LAW.        133 

statute  of  limitations,  and  thus  the  plaintiff  is 
denied  any  relief  whatever.  The  law  allows  a 
defendant,  if  he  claims  he  has  not  been  properly 
served  with  summons  for  the  suit,  to  appear  in 
court  and  move  to  quash  the  summons.  If  he 
does  not  succeed  he  may  take  the  case  to  a 
higher  court  and  thus  determine  the  question 
whether  or  not  he  has  been  properly  brought  be- 
fore the  court.  If  the  object  of  a  summons  is  to 
bring  the  defendant  into  court,  when  he  gets 
there  for  any  purpose  its  object  should  be  con- 
sidered accomplished.  He  should  not  be  per- 
mitted to  say  he  is  in  court  for  the  purpose  of 
objecting  to  its  process,  and  not  there  for  the 
purpose  of  defending  the  suit. 

To  obviate  the  difficulties  and  losses  that  are 
likely  to  arise  from  mistakes  made  in  bringing 
suits  in  courts  that  have  no  jurisdiction,  would 
it  not  be  better  to  give  every  judge  jurisdiction 
of  all  suits  of  every  kind  brought  against  any 
one  anywhere  in  the  state,  subject  to  the  right  of 
the  defendant  to  have  the  case  transferred  to  the 
county  of  his  residence  for  a  trial  ?  Instead  of 
having  courts  of  so  many  different  grades,  why 
not  limit  the  number  to  a  trial  court  and  a  court 
of  review  and  allow  the  judges  in  the  trial  courts 
to  select  the  court  of  review  from  their  own  num- 


134       FALLACIES  OF  THE  LAW. 

ber,  giving  preference  to  those  who  have  had  the 
largest  experience  ?  Where  the  case  involves 
but  a  small  sum,  say  a  $500  debt,  or  a  charge 
punishable  with  a  short  imprisonment,  say  thirty 
days  in  jail,  one  judge  ought  to  be  capable  of 
trying  it  without  assistance.  Where  the  amount 
is  greater,  on  account  of  the  responsibility,  and 
to  insure  deliberation,  three  judges  could  be  pro- 
vided if  either  party  made  the  request.  If  this 
was  found  to  require  the  election  of  too  many 
judicial  officers,  the  law  could  provide  for  ap- 
pointing temporarily  two  lawyers  or  other  com- 
petent persons  to  sit  with  the  judge  in  the 
particular  case. 

The  law  should  provide  at  all  times  abundant 
o£&cials  who  possess  the  legal  authority,  skill  and 
character  essential  to  the  discharge  of  the  judicial 
duties,  in  order  that  all  litigants  may  procure  an 
impartial  and  speedy  trial  of  their  causes.  This 
ought  not  to  be  difficult  in  this  country  where 
there  are  many  who  are  trained  in  a  knowledge 
of  law  and  legal  procedure  and  accustomed  to 
consider  evidence.  It  certainly  is  not  necessary 
to  draft  motormen  from  their  cars,  cab  drivers 
from  their  cabs,  bricklayers  from  their  buildings 
and  clerks  from  their  counters  to  help  the  pre- 
siding judge  try  a  case. 


CHAPTER  XII. 

LAWS    CONCERNING    EVIDENCE. 

Nothing  can  be  more  important  to  the  just 
decision  of  a  case  than  the  truth  relative  to  the 
matters  in  controversy,  and  any  rules  which  have 
the  effect  of  shutting  out  the  truth  tend  to  dis- 
able the  judicial  machinery  in  its  most  important 
function.  There  are  many  such  rules,  a  few  of 
which  will  be  mentioned.  Not  a  few  of  the 
sources  of  information  relied  upon  by  men  in  the 
most  important  transactions  of  life  are  rejected 
under  the  rules  of  evidence.  Often  a  just  claim 
is  defeated  because  the  claimant  is  not  permitted 
to  prove  the  facts.  Among  the  legal  impedi- 
ments in  the  pursuit  of  truth  are  the  following: 

I.  The  statute  of  frauds.  This  was  originally 
an  English  statute,  enacted  in  the  year  1677,  and 
may  be  considered  a  part  of  the  common  law. 
Many  modifications  of  it  have  been  made  by 
statutes  in  the  various  states,  but  some  of  its 
provisions  are  in  force  in  all  the  states.  A 
detailed  discussion  of  this  statute  will  not  be 
attempted,  but  the  defective  character  of  the 


136        FALLACIES  OF  THE  LAW, 

principles  which  underlie  it  will  be  noticed. 
The  effect  of  it  is  to  prevent  the  enforcement  of 
certain  kinds  of  contracts  unless  there  be  some 
note  or  memorandum  in  writing,  signed  by  the 
party  to  be  charged,  or  his  authorized  agent. 
To  illustrate:  Contracts  relating  to  the  sale  of 
personal  property,  where  the  price  exceeds  ten 
pounds,  can  not  be  proved  unless  in  writing  and 
signed  as  aforesaid ;  or  unless  the  contract  is 
taken  out  of  the  operation  of  this  statute  because 
the  purchaser  has  accepted  a  part  of  the  goods, 
or  has  paid  a  part  of  the  price.  The  limit  of  ten 
pounds  must  have  been  the  price  put  upon  the 
character  of  an  Englishman  for  truth  at  that 
time,  it  being  supposed  that  he  could  be  trusted 
to  tell  the  truth  on  a  question  not  involving  more 
than  that  amount.  The  value  of  that  sum  was, 
however,  much  greater  then  than  now,  and  if 
character  for  truth  has  not  depreciated  since 
then,  the  limit  should  be  raised  to  a  higher 
figure.  The  limit  has  been  abolished  in  some 
states  and  the  statute  made  to  apply  to  any  sale 
of  personal  property  without  regard  to  the  amount 
in  value.  Thus  if  a  bill  of  goods  is  ordered  sent 
to  a  residence  and  a  written  order  properly 
signed  is  not  given,  when  the  goods  arrive  the 
purchaser  may  refuse  to  receive  or  pay  for  them 


FALLACIES  OF  THE  LAW.        137 

because  the  evidence  of  the  sale  is  not  in  writing. 
Millions  of  contracts  made  almost  daily  between 
citizens  of  the  United  States  could  thus  be 
avoided  because  of  insufficient  evidence.  Cus- 
tomers are  seldom  asked  to  sign  written  contracts 
when  they  order  goods,  and  usually  do  not  pay  a 
part  of  the  purchase  price  when  giving  the  order. 

This  statute  requires  similar  evidence  from 
many  other  kinds  of  contracts.  Take  another 
illustration:  If  on  the  30th  of  April  A  agrees 
orally  to  lease  from  B  a  dwelling  for  one  year 
beginning  the  ist  of  May,  either  may  repudiate 
the  lease,  because  the  agreement  is  not  to  be  per- 
formed within  one  year,  and  so  must  be  in  writ- 
ing; but  if  the  same  agreement  be  made  on  the 
ist  of  May  it  is  binding. 

If  after  A  has  worked  for  B,  C  promises  orally 
to  pay  for  the  work,  the  agreement  can  not  be 
proved,  because  it  is  a  promise  to  pay  the  debt 
of  another.  If  before  the  work  is  done  C  prom- 
ises to  pay  for  it  if  B  does  not,  the  promise  can 
not  be  proved  unless  in  writing,  because  it  is  an 
agreement  to  answer  for  B's  default;  but  if  C 
promises  unconditionally  to  pay  for  the  work, 
before  it  is  performed,  the  promise  need  not  be 
in  writing.  If  A  agrees  to  pay  B  a  sum  of  money 
if  she  will  marry  him,  or  to  pay  the  sum  to  an- 


138       FALLACIES  OF  THE  LAW. 

other  for  the  same  consideration,  the  promise  can 
not  be  proved  except  by  written  evidence.  If  A 
merely  agrees  with  B  that  he  will  marry  her  the 
promise  need  not  have  written  evidence  to  sup- 
port it.  A  may  agree  with  B  to  build  for  him  a 
house  upon  B's  land,  and  the  agreement  can  be 
proved  by  oral  evidence,  but  if  B  agrees  with  A 
to  give  him  a  lot  therefor  the  agreement  can  not 
be  so  proved.  Contracts  involving  immense 
sums  of  money  may  be  proved  by  oral  testimony, 
if  they  do  not  come  within  some  one  of  the  pro- 
visions of  this  statute;  but  if  they  do  the  ears  of 
the  court  are  shut  to  any  testimony,  however 
convincing  it  may  be,  except  written  memoran- 
dums signed  by  the  party  to  be  charged,  or  by 
his  authorized  agent.  If  a  hundred  credible  wit- 
nesses had  stood  by  and  heard  the  contract  made 
and  each  had  written  down  the  exact  words  of 
the  agreement,  or  if  the  party  to  be  charged  had 
himself  entered  it  in  writing  in  his  own  books 
and  was  made  to  take  the  witness-stand  and 
swear  that  he  made  the  contract  as  claimed,  the 
evidence  would  not  avail.  So  securely  are  the 
hands  of  the  court  tied  by  this  statute  that  it 
can  give  no  attention  whatever  to  any  such  testi- 
mony. From  this  one  would  suppose  that  there 
was  in  a  written  memorandum  something  sacred 


FALLACIES  OF  THE  LAW.        139 

that  made  it  an  object  of  worship  in  a  court  of 
justice. 

2.  Effect  of  written  agreements.  The  law  has 
great  reverence  for  written  agreements.  Where 
the  parties  have  executed  an  agreement  in  writing 
all  oral  agreements  made  relating  to  the  subject 
are  presumed  to  be  merged  in  the  written  one 
and  superseded  by  it,  and  no  oral  evidence  of  any 
conversation  or  agreements  entered  into  at  the 
time  is  competent  to  vary  the  terms  of  the  writ- 
ing. The  written  instrument,  if  not  ambiguous, 
is  read  and  interpreted  by  the  court  and  enforced 
according  to  the  purport  of  its  language.  If  it 
is  ambiguous  the  ambiguity  may  be  explained  by 
oral  evidence  of  what  was  said  and  done  when  it 
was  made.  Written  agreements  are  usually  pre- 
pared by  filling  printed  blanks.  Such  blanks 
commonly  contain  a  large  number  of  provisions 
printed  in  small  type.  They  are  in  a  language 
unfamiliar  to  people  not  educated  in  legal  phra- 
seology. The  parties  seldom  read  them  and 
rarely  attempt  to  interpret  the  meaning  of  these 
provisions.  If  they  did  make  such  an  attempt  it 
would  probably  be  futile.  The  first  effort  made 
to  unravel  them  is  when  one  of  the  parties  fails 
to  keep  his  part  of  the  contract,  and  then  his 
lawyer  searches  the  document  for  an  excuse.    As 


I40       FJiLLACIES  OF  THE  LAW, 

an  illustration  of  the  common  forms  of  written 
agreements  consider  leases  and  insurance  poli- 
cies. The  usual  lease  for  an  office  in  the  city 
of  Chicago  contains  several  pages  of  fine  print. 
Perhaps  most  tenants  sign  substantially  the  sa,rrc 
form,  the  principal  change  being  in  the  descrip- 
tion of  the  rooms  and  the  amount  of  rent  to  be 
paid.  Seldom  if  ever  does  the  landlord  or  his 
agent  or  any  of  his  tenants  read  the  leases 
signed,  and  but  few  of  them  could  understand 
the  provisions  if  they  did.  These  blanks  were 
drawn  by  some  one  at  some  time,  but  no  one 
knows  by  whom  or  when.  They  are  obtained 
from  a  dealer  in  blanks  and  filled  out  by  clerks 
who  usually  know  just  enough  to  fill  the  blank 
spaces.  After  these  leases  have  been  signed 
they  are  pigeonholed  and  no  attention  paid  to 
their  numerous  provisions  except  the  one  provid- 
ing for  the  payment  of  rent.  They  contain  many 
restrictions  that  are  frequently  violated  by  both 
parties.  The  real  understanding  between  the 
landlord  and  his  tenants  is  that  the  landlord  will 
clean  and  put  the  premises  in  proper  repair  each 
year  and  make  them  fit  for  the  purpose  for  which 
they  are  leased,  and  that  he  will  make  all  per- 
manent repairs  that  become  necessary  and  fur- 
nish heat,  and  that  the  tenant  will  pay  the  rent 


FALLACIES  OF  THE  LAW,       141 

monthly.  These  observations  apply  with  the 
same  force  to  leases  for  flats  or  tenement  houses. 
Such  a  lease  is  quite  as  bulky  and  fat  in  condi- 
tions and  provisions  and  is  as  frequently  violated 
as  the  office  lease.  If  a  controversy  arises  be- 
tween the  landlord  and  his  tenant,  and  the  court 
is  called  upon  to  act  on  the  contract,  the  law  is 
absolutely  blind  to  the  real  agreement  between 
the  parties.  The  blank  lease,  with  all  its  fine- 
print  provisions,  is  found  and  brought  forth  as 
the  only  evidence  of  the  agreement,  and  by  it  all 
the  rights  are  measured. 

Now  consider  the  life-insurance  policy.  A 
smooth  solicitor  asks  a  few  questions  which  he 
usually  asserts  are  mere  matters  of  form.  From 
the  answers  made  he  fills  out  a  large  printed 
blank  containing  numerous  provisions  in  small 
type.  This  the  applicant  often  signs  without 
even  reading  its  contents.  If  he  does  read  it,  he 
ordinarily  does  not  understand  the  nature  and 
import  of  these  provisions.  He  is  examined  by 
the  company's  physician,  pays  the  premium  ex- 
acted by  the  company,  and  receives  a  large  docu- 
ment containing  its  name  in  big  letters,  engraved 
beautifully  on  elegant  paper,  and  the  words  of  a 
contract  insuring  him,  printed  in  bold,  ornate 
type.     Then  follow  several  pages  in  fine  print 


142        FALLACIES.  OF  THE  LAW. 

containing  prohibitions  upon  his  conduct,  condi- 
tions precedent  and  subsequent,  and  warranties, 
all  of  which  are  tied  together  with  a  stipulation 
that  in  case  of  a  failure  to  keep  any  of  them  he 
shall  forfeit  all  rights  under  the  policy  and  lose 
ythe  payments  he  has  made  thereunder.  The  por- 
tion of  the  policy  containing  the  provisions  and 
conditions  he  usually  does  not  read.  If  he  does, 
he  can  not  understand  them.  Having  paid  his 
money  for  life  insurance,  and  having  been  exam- 
ined by  the  company's  physician,  he  reposes 
upon  the  sweet  supposition  that  his  life  is  actually 
insured  and  that  in  the  event  of  his  death  his 
beneficiaries  will  be  paid  the  sum  mentioned  in 
the  policy.  This  perhaps  is  also  the  belief  of  the 
agent  of  the  company.  It  is  not  expected  that 
all  these  fine-print  provisions  will  be  heeded  and 
strictly  enforced.  In  most  cases  the  company 
pays  no  attention  whatever  to  them,  and  when  a 
death  occurs  it  usually  pays  the  sum  agreed  upon 
without  delay  or  question.  But  if  the  circum- 
stances cause  a  suspicion  that  the  insured  has 
intended  to  defraud  the  company,  and  a  contro- 
versy arises  so  that  the  matter  gets  into  court, 
the  real  intention  and  understanding  of  the  par- 
ties then  becomes  immaterial.  The  court  looks 
only  to  the  policy,  and  enforces  all  its  provisions 


FALLACIES  OF  THE  LAW.        1 43 

according  to  their  technical  meaning,  except  the 
parts  which  the  evidence  shows  have  been  waived. 
The  beneficiaries  named  in  the  policy  often  find 
that  there  was  really  no  insurance  contract  that 
bound  the  company,  because  the  words  in  fine 
print  gave  the  company  the  right,  under  the  facts 
as  they  existed,  to  take  and  keep  the  money  of  the 
applicant  and  forfeit  the  policy.  Much  the  same 
method  is  pursued  in  making  contracts  for  acci- 
dent insurance.  Such  is  the  effect  of  the  rule 
which  prevents  parties  in  the  event  of  litigation 
from  showing  what  was  the  real  agreement  in- 
tended. 

Perhaps  the  most  important  contract  in  the 
world  is  the  marriage  contract.  This  is  usually 
not  in  writing.  All  the  obligations  of  the  con- 
tracting parties  are  fixed  by  law  and  can  not  be 
varied  by  any  form  of  agreement.  If  it  is  not 
necessary  in  making  a  marriage  contract  to  put 
it  in  writing  and  have  it  contain  a  hundred  pro- 
visions and  conditions,  why  may  not  the  law  like- 
wise fix  the  obligations  of  landlord  and  tenant, 
insurer  and  insured,  and  the  obligations  of  many 
of  the  other  common  relations  of  life,  so  that  they 
can  not  be  affected  by  private  agreements  ?  The 
only  question  that  would  then  be  necessary  to  be 
determined  in  the  event  of  a  dispute  would  be 


144        FALLACIES  OF  THE  LAW. 

whether  the  parties  had  actually  entered  into  the 
relation.  We  would  then  have  no  more  bulky 
blank  contracts  full  of  traps  and  abstruse  provi- 
sions to  puzzle  the  wits  of  trained  lawyers  and 
judges  and  prevent  a  just  judgment  according  to 
V  the  real  understanding  of  the  parties. 

It  may  be  conceded  that  in  many  cases  a  writ- 
ten contract  is  the  best  evidence  of  what  the  par- 
ties actually  intended  to  agree  upon  at  the  time 
it  was  executed,  but  such  is  not  always  the  case. 
While  a  written  contract  ought  to  be  admissible 
for  what  it  is  actually  worth,  other  credible 
evidence  should  also  be  admitted  and  given  the 
weight  to  which  under  the  particular  circum- 
stances of  the  case  it  appears  to  be  entitled. 
The  fact  that  a  writing  is  prepared  and  signed  as 
evidence  of  the  agreement  must  depend  for  its 
force  as  evidence  upon  all  the  circumstances  sur- 
rounding the  act.  What  was  said  by  the  parties 
immediately  preceding,  at  the  time  and  immedi- 
ately after,  in  characterizing  the  act,  and  their 
declarations  as  to  what  was  intended  by  it,  when 
established  by  credible  testimony,  should  be  ad- 
missible in  determining  whether  or  not  the  minds 
of  the  parties  did  in  fact  meet  in  an  agreement, 
and  what  the  real  agreement  was.  The  defect  in 
the  rule  under  discussion  is  that  it  singles  out 


FALLACIES  OF  THE  LAW.  145 

one  act  which  tends  to  show  the  real  agreement 
and  not  only  gives  it  paramount  force  but  makes 
it  absolutely  conclusive  of  the  intention  of  the 
parties. 

The  same  reason  for  criticism  applies  to  the 
statute  of  frauds,  above  referred  to.  Parties  fre- 
quently enter  into  agreements  without  making 
the  written  memorandum  required,  and  would  be 
able,  but  for  this  statute,  to  prove  their  agree- 
ment by  evidence  quite  as  credible  as  a  written 
memorandum  signed  by  the  parties.  If  the  mem- 
orandum could  prove  itself  without  any  oral  evi- 
dence the  statute  would  seem  more  consistent, 
but  the  memorandum  must  be  identified  and 
proven  as  genuine  by  oral  evidence,  and  if  it  is 
signed  by  an  agent  his  authority  must  ordinarily 
be  proven  in  the  same  way.  In  admitting  such 
proof  the  law  gives  credit  to  oral  evidence  and 
the  recollections  of  persons  present  as  to  what 
took  place.  If  such  evidence  is  competent  and 
reliable  to  prove  the  making  of  the  memorandum, 
why  should  it  not  have  some  weight  in  establish- 
ing the  other  parts  of  the  transaction  ? 


CHAPTER  XIII. 
LAWS  CONCERNING  EVIDENCE — Continued. 

3.  Effect  of  a  seal.  The  reverence  which  the 
law  has  for  ordinary  written  agreements  is  far 
surpassed  by  its  blind  adoration  of  what  is  called 
a  "seal."  An  instrument  which  has  a  seal  affixed 
to  it  or  printed  thereon  possesses  a  kind  of  royal 
dignity  among  instruments.  No  one  is  allowed 
to  dispute  the  sufficiency  of  its  consideration  in  a 
court  of  law,  and  no  written  instrument  without 
a  seal  is  competent  to  prove  that  a  sealed  in- 
strument has  been  subsequently  modified  by  the 
parties  to  it.  Let  us  for  a  moment  analyze  this 
fetich  of  the  law. 

The  use  of  a  seal  is  of  ancient  origin.  Kings 
and  nobles  who  could  not  write  their  names  had 
devices  for  making  an  impression  on  wax,  and 
when  they  wished  to  execute  an  instrument  they 
stuck  to  it  a  large  lump  of  wax  and  impressed 
their  seal  upon  the  wax.  This  sealing  was  sup- 
posed to  be  an  act  of  great  solemnity.  Such 
seals  are  no  longer  in  use :  now  a  mere  scroll  or 
scrawl,  or  any  irregular  mark  or  blotch  made 


FALLACIES  OF  THE  LAW,        1 47 

with  the  pen  opposite  the  name  of  the  signer  is 
sufl&cient  to  constitute  a  seal.  Even  the  word 
SEAL  printed  on  the  paper  at  the  end  of  the  line 
where  the  signature  is  placed  has  been  held  suf- 
ficient to  make  the  instrument  signed  a  sealed 
instrument.  If  an  instrument  lacks  this  seal  it 
may  be  set  aside  or  avoided  by  proof  that  it  was 
given  without  consideration,  or  that  the  consid- 
eration to  be  given  has  failed,  or  that  fraudulent 
representations  induced  the  acceptance  of  the 
consideration  for  which  it  was  given.  If,  how- 
ever, it  has  marks  or  printing  from  which  an  in- 
tention to  seal  it  may  be  inferred,  the  sufl&ciency 
of  its  consideration  is  conclusively  presumed  in 
law.  If  the  person  executing  it  knew  what  he 
was  doing  when  he  signed  it,  a  court  of  law  will 
give  him  no  relief  for  any  fraud  committed  upon 
him  to  induce  its  execution.  This  scroll,  scrawl 
or  other  device  shuts  the  doors  of  the  court 
against  him;  but  the  swindler  who  has  induced 
the  execution  of  this  sealed  instrument  by  false 
representations  can  call  upon  the  courts  to  aid 
him  garner  the  fruits  of  his  rascality.  Only  a 
few  of  those  who  sign  instruments  which  purport 
to  have  a  seal  know  that  the  seal  has  this  effect. 
Most  do  not  even  note  that  the  word  "seal"  is 
adjacent  to  the  place  where  they  append  their 


148        FALLACIES  OF  THE  LAW. 

names.  They  are  thus  easily  caught  in  a  trap 
from  which  a  court  of  law  is  powerless  to  extri- 
cate them.  Some  of  the  states  have  abolished 
the  common-law  effect  of  a  seal,  and  all  the  oth- 
ers ought  to  do  so. 

Courts  of  chancery  may  correct  mutual  mis- 
takes in  written  agreements  when  clearly  proven, 
and  grant  relief  from  Lealed  instruments  when 
obtained  by  fraudulent  representations  relative 
to  the  consideration.  Fraud  should  always 
vitiate  every  instrument  which  it  has  induced, 
and  courts  should  always  be  ready  to  hear 
credible  evidence  of  the  real  consideration  and 
quick  to  prevent  injustice  of  every  form. 

4.  Effect  of  certain  ceremonies.  The  laws  of 
every  state  provide  for  specific  ceremonies  con- 
nected with  the  doing  of  certain  acts.  Take  as 
an  illustration  the  laws  relating  to  the  execution 
of  a  will.  Ordinarily  there  must  be  two  persons 
not  interested  in  the  will  to  witness  its  execution. 
The  testator  must  request  them  to  witness  it,  and 
they  must  both  be  present  and  see  him  sign, 
and  themselves  sign  as  witnesses  in  his  presence 
and  in  the  presence  of  each  other.  If  one  of 
these  witnesses  is  interested  in  the  will,  or  is  not 
formally  requested  by  the  testator  to  act  as  a 
witness,  or  is  not  present  when  the  other  witness 


FALLACIES  OF  THE  LAW.        149 

signs,  or  does  not  see  the  testator  append  his 
signature,  the  will  is  invalid.  And  such  is  the 
rule  in  states  where  the  testator  or  any  one  can 
execute  a  valid  deed  without  any  one  signing  as 
a  witness,  and  convey  property  of  any  kind  or 
value.  Proof  of  the  grantor's  signature  to  such 
a  deed  can  be  made  by  the  testimony  of  any  one 
who  knows  it,  whether  interested  or  not.  Even 
the  testimony  of  the  grantee  to  whom  the  prop- 
erty is  conveyed  may  be  sufficient  to  prove  the 
signature.  Why  should  there  be  such  discrimi- 
nation between  a  will  and  an  ordinary  deed  of 
conveyance  ?  Wills  are  often  made  under  cir- 
cumstances of  great  distress,  and  sometimes  ex- 
citement, and  these  very  technical  provisions  are 
overlooked.  Where  some  of  them  are  omitted 
they  are  usually  supplied  by  false  testimony. 
The  real  question  ought  always  to  be,  What  dis- 
position did  the  testator  actually  intend  to  make 
of  his  property  ?  If  his  actual  intention  and  his 
belief  that  he  did  what  was  necessary  to  effect  his 
intention  can  be  clearly  proved  by  credible  evi- 
dence, that  ought  to  be  sufficient.  The  law  now 
concerns  itself  more  with  formal  ceremonies  of 
the  most  trivial  nature  than  with  the  testator's 
actual  purpose.  If  the  slightest  of  these  ceremo- 
nies are  not  shown  to  have  been  observed,  no 


150       FALLACIES  OF  THE  LAW. 

amount  of  other  proof,  however  credible,  will  suf- 
fice to  establish  the  intention  of  the  deceased. 

Of  a  slightly  different  nature  is  the  law  rela- 
tive to  gifts  of  personal  property  otherwise  than 
by  will.  To  constitute  such  a  gift  the  law  re- 
quires that  the  giver  part  with  all  possession  and 
dominion  over  the  thing  given.  He  must  either 
deliver  it  to  the  person  to  whom  he  intends  to 
give  it  or  to  some  third  person  for  his  benefit,  or 
do  what  amounts  to  an  absolute  surrender  of  all 
dominion  over  the  thing  given.  In  this  particu- 
lar the  law  is  very  strict,  and  no  amount  of  evi- 
dence, however  clear  and  conclusive,  as  to  the 
intention  of  the  donor  to  make  the  gift,  and  no 
number  of  acts  or  declarations  showing  a  present 
purpose  of  carrying  out  that  intention,  is  suffi- 
cient unless  dominion  by  the  donor  is  actually 
surrendered.  This  rule  has  caused  a  great  num- 
ber of  gifts  to  fail.  Though  the  giver  intended 
to  make  the  gifts,  and  supposed  that  they  were 
completed,  the  things  he  intended  to  give  have 
become,  after  his  death,  the  property  of  those  he 
intended  should  not  have  them.  In  a  recent  case 
in  Illinois  an  uncle  executed  checks  for  1^33,000 
on  his  funds  in  bank  and  delivered  them  to  his 
beloved  niece  who  had  faithfully  served  him  as 
housekeeper  and  companion  for  over  forty  years. 


FALLACIES  OF  THE  LAW,       151 

He  fell  ill  soon  afterward  and  she  was  too  much 
occupied  in  nursing  him  to  ask  for  the  money 
until  after  his  death.  In  settling  his  estate  the 
Illinois  courts  held  that  the  checks  were  intended 
as  a  gift  of  money,  and  that,  the  money  not  being 
actually  delivered  to  her,  the  gift  was  incomplete. 
So  the  real  intention  of  the  uncle  was  defeated, 
the  niece  deprived  of  her  just  dues  by  a  barren 
technicality,  and  the  money  intended  for  her  was 
distributed  among  other  persons  contrary  to  the 
uncle's  intentions. 

Persons  having  money  or  property  in  safety 
deposit  boxes  or  other  receptacles  often  suppose 
they  can  give  it  to  some  loved  one  by  written  or 
oral  declarations  in  the  presence  of  witnesses, 
and  do  not  perform  the  ceremony  of  surrendering 
to  the  object  of  their  bounty  the  actual  posses- 
sion of  the  article,  and  when  death  intervenes  this 
laudable  effort  of  love  is  perverted  by  this  fallacy 
of  the  law.  When  the  evidence  of  the  intention 
to  make  a  gift  is  so  clear  and  conclusive  as  to 
leave  no  doubt  of  it,  this  intention,  and  not  a 
mere  ceremony,  should  govern.  The  actual  de- 
livery of  possession  is  only  one  circumstance 
tending  to  show  the  intention  of  the  giver;  and 
while  it  is  some  evidence  of  an  intention  to  make 
a  gift,  written  words  or  oral  declarations  of  the 


152        FALLACIES  OF  THE  LAW. 

donor,  when  clearly  proved,  may  be  just  as  strong 
evidence,  and  sometimes  stronger.  All  laws 
that  have  the  effect  of  making  one  kind  of  evi- 
dence absolutely  essential  to  prove  a  fact  are  im- 
pediments in  the  course  of  justice.  They  prevent 
the  truth  from  being  shown  and  deprive  persons 
of  the  property  intended  to  be  conveyed  to  them 
and  confer  it  upon  others  who  have  no  right 
whatever  to  receive  it. 

This  is  also  true  of  all  laws  relative  to  the 
authentification  of  deeds  and  other  conveyances 
in  writing,  foreign  and  domestic.  It  is  wise  to 
provide  that  a  certain  ceremony  or  kind  of  certifi- 
cate shall  be  evidence  sufficient  to  show  that  the 
document  was  executed,  until  the  contrary  is 
made  to  appear,  but  no  ceremony  or  certificate 
should  be  the  only  evidence  admissible  to  prove 
the  execution.  Any  evidence  entitled  to  credit 
in  the  ordinary  affairs  of  human  life  should  be  as 
proper  to  prove  the  execution  of  a  written  instru- 
ment as  to  prove  any  other  fact. 

5.  Effect  of  interest  and  relationship.  At 
common  law  all  who  were  directly  interested  in 
the  result  of  a  suit  were  unqualified  to  give  testi- 
mony as  witnesses.  This  rule  was  based  upon 
the  legal  presumption  that  persons  will  swear 
falsely  to  conserve  their  own  interests.     This 


FALLACIES  OF  THE  LAW,        1 53 

notion  has  since  been  very  generally  repudiated, 
and  probably  every  state  has  changed  this  com- 
mon-law rule,  so  that  interested  persons  are  now 
permitted  to  testify  in  general  matters,  but  the 
fact  of  their  interest  may  be  shown  and  consid- 
ered in  deciding  what  weight  shall  be  given  to 
their  evidence.  There  are,  however,  in  most  of 
the  states  some  vestiges  of  the  old  doctrine  still 
remaining.  Where  one  of  the  parties  dies  during 
the  litigation,  or  becomes  insane  or  otherwise 
incapable  of  giving  evidence,  the  other  party  and 
all  others  having  a  direct  pecuniary  interest  in 
the  result  of  the  suit  are  usually  disqualified  from 
giving  testimony.  Also  where  the  suit  is  to 
establish  a  claim  against  the  estate  of  a  deceased 
or  an  insane  person,  those  who  have  a  direct 
interest  in  the  claim  are  ordinarily  made  incom- 
petent to  testify.  In  a  suit  brought  by  a  husband 
and  wife,  not  against  each  other,  usually  neither 
is  permitted  to  testify  for  or  against  the  other. 
Disqualifying  parties  and  witnesses  because  of 
the  death  or  disability  of  the  other  party  to  the 
suit  or  transaction  is  said  to  be  intended  to 
protect  from  spurious  claims  the  estates  of 
persons  deceased  or  disabled.  The  law  should 
certainly  be  as  diligent  in  protecting  living  per- 
sons from  spurious  claims  as  in  keeping  intact 


154       FALLACIES  OF  THE  LAW, 

the  estates  of  persons  deceased  or  disabled.  If 
the  disqualification  is  justified  it  must  be  on 
the  presumption  that  the  oath  of  a  person  thus 
interested  is  entitled  to  no  weight  whatever  as 
evidence;  that  such  a  person  is  certain  to  swear 
falsely  if  given  an  opportunity,  and  that  the  court 
or  jury  will  not  be  able  to  detect  the  falsity  of  the 
evidence.  Therefore  he  is  not  permitted  to  speak 
at  all.  When  we  consider  that  most  persons  tell 
the  truth  relative  to  their  pecuniary  affairs,  and 
that  the  commerce  of  the  world  is  based  upon 
honor  and  the  veracity  of  persons  who  may  be 
interested  to  speak  falsely,  how  narrow  and  far- 
fetched appears  this  legal  presumption.  There 
are  doubtless  some  persons  who  would  take 
advantage  of  such  a  situation  and  trump  up  a 
fraudulent  claim  against  the  estate  of  a  deceased 
or  insane  person  and  support  it  by  perjury,  but 
they  are  few  in  proportion  to  the  whole  number 
who  are  thus  disqualified  by  this  statute.  The 
death  or  disability  of  a  defendant  may  make  it 
more  difficult  to  defend  and  thus  seem  to  give  an 
advantage  to  the  party  surviving.  All  this  can 
be  considered  by  court  or  jury  in  weighing  the 
evidence,  and  if  they  believe  the  character  of  the 
plaintiff  is  such  that  he  would  swear  falsely,  be- 
cause he  has  an  opportunity  to  do  so  and  not  be 


FALLACIES  OF  THE  LAW.        1 55 

contradicted,  they  should  give  less  weight  to  the 
story  he  tells.  A  law  denying  to  all  the  right 
of  testifying  because  some  might  abuse  it  is 
manifestly  unjust. 

Husband  and  wife  are  not  allowed  to  testify 
for  each  other  because  it  is  said  they  are  one, 
and  when  one  branch  of  the  one  has  been  a  wit- 
ness the  other  branch  should  be  silent,  for  one 
person  in  law  can  not  be  two  witnesses.  No 
argument  should  be  necessary  to  refute  this  as- 
sumption. Again,  it  is  said  that  the  marriage 
state  produces  such  a  unity  of  interests  that  there 
is  no  reliability  in  the  testimony  of  either  when 
given  in  behalf  of  the  other.  This  is  another 
disqualification  for  interest,  and  having  repudia- 
ted that  part  of  the  common  law  making  interest 
a  disqualification  generally,  it  would  be  consis- 
tent to  remove  this  disability  of  husband  and 
wife.  It  is  also  claimed  that  husband  and  wife 
should  not  be  permitted  to  testify  against  each 
other  because  it  might  disturb  the  peace  of  the 
marital  state.  This  is  another  illustration  of  the 
great  love  the  law  has  for  the  peace  of  the  mar- 
riage state.  It  would  preserve  it  at  the  cost  of 
truth  and  justice.  It  would  prefer  to  render  an 
unjust  judgment  rather  than  risk  a  disturbance 
of  marital  peace  by  requiring  the  spouse  of  the 


156       FALLACIES  OF  THE  LAW, 

party  suing  to  tell  what  he  or  she  knew  of  the 
transaction.  This  of  course  is  a  matter  of  taste, 
and  may  afford  a  reason  why  those  united  in 
wedlock  should  not  be  compelled  to  testify 
against  each  other,  but  it  is  certainly  not  a  reason 
why  they  should  not  be  permitted  to  testify  for 
each  other  if  they  wish. 

What  credit  shall  be  given  the  testimony  of  a 
particular  person  or  class  of  persons  depends 
upon  too  man}"^  circumstances  to  be  a  fit  subject 
for  general  legislation.  The  credibility  of  wit- 
nesses and  the  reliance  that  may  be  placed  upon 
certain  facts  and  circumstances  ought  to  be  left 
for  determination  by  the  court  that  tries  the  suit. 
Those  who  sit  in  judgment  have  a  better  oppor- 
tunity for  sifting  the  true  from  the  false  than  any 
one  else  can  have.  All  legislation  on  the  subject 
must  apply  generally  and  thereby  often  exclude 
the  true  with  the  false. 

In  judicial  proceedings  the  truth  is  the  precious 
gem  sought,  and  the  diligent  searcher  should  not 
be  particular  about  the  character  of  the  soil  where 
the  search  is  made.  Like  the  beautiful  flower  that 
lifts  its  stainless  petals  from  the  mire,  the  truth 
when  found  will  wear  a  radiance  undimmed  by 
whatever  may  be  near  it,  and  it  will  be  easily 
recognized  by  the  practised  eye  of  a  just  judge. 


CHAPTER  XIV. 

EFFECT    OF   A  JUDGMENT. 

I.  Setting  aside  judgments  for  error.  The 
trial  of  a  suit  before  a  jury  is  usually  an  exciting 
experience  for  all  concerned.  The  parties,  their 
attorneys,  the  witnesses,  and  often  the  judge,  are 
kept  in  a  high  state  of  nervous  tension  during 
the  entire  proceedings.  It  is  a  great  intellectual 
battle,  and  even  when  the  amount  at  stake  is 
small  there  is  always  an  intense  desire  to  win, 
which  is  enough  to  keep  everybody  connected 
with  the  matter  in  a  state  of  feverish  agitation. 
Such  an  atmosphere  is  well  adapted  to  breeding 
errors,  and  surely  there  are  enough  opportuni- 
ties for  a  large  brood.  There  are  usually  many 
questions  relative  to  the  fitness  and  sufficiency 
of  the  written  pleadings,  and  many  more  relative 
to  the  admissibility  of  evidence.  The  jury  must 
obtain  their  knowledge  of  law  from  the  judge's 
instructions,  and  numerous  difficult  questions 
usually  arise  relative  to  the  action  of  the  court  in 
giving  or  refusing  to  give  instructions.  The  at- 
torneys may  be  guilty  of  misconduct  in  address- 


158        FALLACIES  OF  THE  LAW. 

ing  the  jury,  and  sometimes  members  of  the  jury 
are  guilty  of  misconduct.  All  the  proceedings 
are  made  of  record,  and  if  on  a  review  of  this 
record  in  an  upper  court  it  is  found  that  an  error 
which  might  have  affected  the  result  of  the  case 
has  been  committed  in  the  court  below,  the  ver- 
dict and  judgment  of  the  lower  court  may  be  set 
aside  and  the  cause  may  be  tried  again,  before 
another  jury.  There  are  so  many  doubtful  points 
to  be  ruled  upon,  and  the  ruling  is  so  often  re- 
quired to  be  made  without  time  for  deliberation, 
that  an  absolutely  flawless  record  is  seldom  made 
by  the  court  in  the  trial  of  a  case.  If  the  judge 
commits  no  error,  the  jury  may  commit  one  that 
in  the  opinion  of  the  reviewing  court  is  sufficient 
to  set  aside  the  verdict.  When  we  consider  the 
many  opportunities  for  committing  errors,  it  is 
remarkable  that  so  many  judgments  are  permitted 
to  stand.  Fewer  judgments  would  stand  if  it 
were  not  for  other  rules  which  often  defeat  or 
disable  the  party  seeking  to  review  the  record 
and  prevent  him  from  getting  a  hearing  on  the 
errors  assigned.  There  may  be  two  and  some- 
times three  higher  courts  to  which  the  case  may 
be  taken  for  review.  All  these  courts  have  spe- 
cial powers  and  rules  of  practice  which  must  be 
strictly  observed.     Any  mistake  in  selecting  the 


FALLACIES  OF  THE  LAW.       159 

court  or  in  conducting  the  proceedings  therein 
is  likely  to  result  in  defeat  to  the  party  making 
the  mistake.  To  secure  a  review  the  question  to 
be  reviewed  must  have  been  raised  in  the  court 
below  by  making  an  objection  to  the  ruling  of 
the  court  when  it  was  about  to  occur,  and  after  it 
occurred  an  exception  must  have  been  taken  to 
the  ruling.  The  party  complaining  must  say 
he  excepts  to  the  ruling.  If  he  utters  the  word 
"exception"  after  the  ruling  is  announced  by 
the  court,  that  is  sufficient.  Unless  the  record 
shows  such  an  exception  was  taken  at  the  time 
of  the  ruling  the  court  will  not  review  the  deci- 
sion. 

Is  not  this  rule  requiring  exceptions  a  mere 
quibble  ?  When  a  person  objects  to  a  ruling, 
why  may  he  not  be  considered  dissatisfied  with 
any  ruling  made  against  the  objection?  Why 
should  he  be  required  to  say  more  ?  Judges  em- 
ployed to  administer  justice  should  not  be  ham- 
pered by  such  trifles,  and  where  it  appears  by  the 
record  that  any  illegal  action  has  been  taken,  and 
it  has  probably  caused  an  unjust  judgment,  the 
court  on  review  ought  to  correct  the  error,  even 
though  no  objection  was  made  at  the  time.  All 
such  shackles  which  prevent  courts  from  admin- 
istering justice  should  be  removed.     All  rules 


l6o       FALLACIES  OF  THE  LAW. 

and  ceremonies  of  every  nature  should  be  sub- 
ject to  the  one  great  aim  and  all  should  wait  on 
justice. 

The  form  of  the  objection  made  is  also  impor- 
tant. It  sometimes  happens  that  the  complain- 
ing party  has  objected  and  excepted  to  the  ruling 
of  the  court,  but  his  objection  is  held  insufficient 
in  form.  Sometimes  the  objection  is  general 
where  it  should  have  been  specific  and  have 
stated  the  precise  ground  of  the  objection,  or 
a  wrong  ground  may  be  stated  when  a  good  one 
exists.  In  either  event  the  objection  and  excep- 
tion will  not  be  sufficient  to  secure  a  reversal. 
There  are  many  very  strict  rules  relative  to  pre- 
paring bills  of  exception,  abstracts  of  the  record, 
assigning  errors,  constructing  briefs  and  argu- 
ments and  similar  matters.  A  slight  deviation 
from  these  rules  may  render  abortive  any  effort 
to  procure  a  review.  Perhaps  one-third  of  the 
efforts  to  secure  a  review  fail  in  whole  or  in  part 
because  of  a  failure  to  comply  with  these  rules. 
About  two-fifths  of  the  cases  fully  reviewed  are 
reversed  and  the  judgments  of  the  lower  court 
set  aside.  Many  suits  are  thus  required  to  be 
retried  many  times  before  the  end  is  reached. 

No  language  can  convey  an  adequate  idea  of 
the  vexations  that  spring  from  this  intricate  and 


FALLACIES  OF  THE  LAW-        i6l 

cumbrous  mass  of  judicial  machinery  v/hich  has 
been  briefly  sketched  in  these  pages.  Nothing 
but  the  misery  of  actual  experience  will  suffice. 
One  who  has  spent  many  years  of  time  and  in- 
curred great  expense  in  a  desperate  struggle  for 
justice;  who  during  that  time  has  been  held  on 
the  rack  oscillating  between  hope  and  fear,  weary 
from  sleepless  nights,  and  has  appeared  at  last 
before  some  great  court  of  his  country,  may 
listen  to  the  solemn  words  of  its  broad-browed 
Chief  Justice  confessing  for  the  court  that  its 
members  are  powerless  to  grant  him  any  relief; 
that  they  reluctantly  deprive  him  of  his  fortune 
because  of  some  of  these  spider-web  rules  of  their 
own  weaving  which  tie  them  hand  and  foot  and 
disable  them  from  meting  out  justice  to  him. 
Only  those  who  have  had  such  an  experience  can 
fully  appreciate  the  anguish  and  exasperation 
that  are  caused  by  this  judicial  machinery.  It  is 
incredible  that  such  a  device  has  been  so  long 
tolerated  by  civilized  men.  There  is  surely  no 
private  business  that  would  long  employ  such  a 
method. 

2.  Laws  destroying  the  force  of  the  judgment 
After  having  labored  through  the  anxious  travail 
of  a  lawsuit,  and  having  run  a  gauntlet  from  the 
lowest  to  the  highest  courts,  and  when  the  end  is 


1 62        FALLACIES  OF  THE  LAW. 

reached  and  a  judgment  is  rendered  in  his  favor, 
the  triumphant  suitor  may  congratulate  himself 
on  his  good  luck  and  suppose  that  a  judgment  in 
his  favor  means  something.  When  the  august 
court  decrees  that  he  shall  have  and  recover  a 
certain  sum  he  may  imagine  he  is  likely  to  receive 
something  of  value.  In  many  cases  the  suitor 
finds  that  this  solemn  emanation  from  the  court, 
and  which  it  has  cost  him  much  to  procure,  is  not 
worth  the  paper  upon  which  it  is  written,  because 
of  other  laws  which  engraft  exceptions  upon  the 
order  and  make  it  ineffective.  He  can  not  have 
and  recover  unless  the  judgment  defendant  pos- 
sesses property  that  may  be  sold  to  satisfy  the 
judgment.  Often  he  finds  that  the  defendant  has 
never  acquired  any  such  property,  or  if  he  had 
previously  acquired  it  he  has  parted  with  it  dur- 
ing the  long  and  tedious  proceedings.  The  de- 
fendant may  still  retain  a  home  and  household 
furniture  and  much  other  personal  property,  and 
be  earning  fair  wages,  but  all  this  property  and 
earnings  have  been  made  exempt  from  execution 
by  the  law,  and  the  defendant  may  retain  and 
enjoy  it,  and  carry  on  his  customary  affairs  the 
same  as  he  did  before  the  judgment  was  entered. 
He  need  have  no  regard  whatever  to  that  order 
which  the  plaintiff  has  gone  to  such  trouble  and 


FALLACIES  OF  THE  LAW.        163 

expense  to  obtain.  But  the  plaintiff  may  still 
cherish  the  hope  that  the  debtor  may  sometime 
by  good  luck,  industry  or  inheritance  accumulate 
property  out  of  which  the  judgment  may  be  satis- 
fied. This  too  is  likely  to  prove  a  delusion;  for 
if  the  debtor  anticipates  such  acquisitions,  the 
law  has  provided  a  broad  and  easy  way  for  him 
to  escape  paying  the  judgment.  At  an  expense 
of  less  than  fifty  dollars  he  may  apply  to  the 
bankrupt  court  and  be  forever  released  and  dis- 
charged from  this  judgment  and  other  debts. 
Thus  we  see  how  utterly  worthless  the  judgment 
of  the  court  may  become  in  a  civil  suit.  Where 
the  suit  is  criminal  in  its  nature  and  the  defend- 
ant is  convicted  of  embezzling  money  or  stealing 
property,  or  intentionally  disabling  a  person, 
the  injured  party  who  appeals  to  the  criminal 
court  for  a  remedy  gets  another  kind  of  redress. 
The  defendant  adjudged  guilty  may  be  sentenced 
for  a  term  of  years  in  prison  or  commanded  to 
pay  a  large  sum  of  money  as  a  fine.  This  fine,  if 
it  is  collected,  goes  either  into  the  public  treas- 
ury or  into  the  pocket  of  some  of  its  officers,  and 
not  one  cent  is  ever  paid  to  the  injured  party. 
If  the  defendant  is  placed  in  prison  and  com- 
pelled to  toil  at  hard  labor,  all  the  proceeds  of 
his  labor  go  to  the  state.   What  kind  of  redress  is 


1 64       FALLACIES  OF  THE  LAW. 

this  to  the  injured  party  ?  What  kind  of  repara- 
tion for  losses  sustained  ?  "An  eye  for  an  eye, 
and  a  tooth  for  a  tooth"  is  no  compensation  to 
the  one  who  has  lost  eyes  or  teeth.  There  is  no 
process  of  law,  physics  or  metaphysics  by  which 
an  eye  or  a  tooth  taken  from  the  defendant  may 
refill  the  denuded  gums  or  eyeless  socket  of  the 
injured  party.  The  redress  furnished  by  the 
criminal  statutes  merely  gratifies  an  animal  pas- 
sion for  revenge. 

Some  will  concede  the  inadequacy  of  our  legal 
means  of  redress  and  challenge  the  writer  to  out- 
line a  better  one.  "How  can  you  get  blood  out 
of  a  turnip?"  is  a  familiar  question  asked  by 
those  who  despair  of  collecting  a  just  claim  from 
an  impecunious  defendant.  The  real  question  is 
not  how  to  get  blood  out  of  a  turnip,  but  how  to 
get  money  out  of  a  "beat."  When  the  order  of 
the  court  is  willfully  disobeyed  the  government 
is  to  that  extent  overthrown.  Every  person  who 
refuses  to  obey  the  order  of  a  court  when  the  suit 
is  in  chancery  may  be  punished  by  imprisonment 
until  he  is  coerced  into  obedience.  But  any  one 
may  disregard  the  same  judge  when  his  judgment 
is  in  a  suit  at  law.  If  such  a  judgment  is  col- 
lected it  must  be  by  an  execution  levied  upon 
the  debtor's  property  not  exempt,  and  this  prop- 


FALLACIES  OF  THE  LAW.  1 65 

erty  must  be  sold  at  auction  to  the  highest  bidder 
for  cash.  Immediately  after  the  judgment  is 
entered  the  prevailing  party  is  entitled  to  have 
such  an  execution  issued  unless  prevented  by  an 
appeal  or  stay  bond.  If  the  debtor  has  property 
subject  to  the  writ  it  is  seized  and  sacrificed  at  a 
forced  sale,  where  it  seldom  brings  much  more 
than  half  its  value,  and  the  costs  of  advertising 
and  selling  it  consume  a  large  share  of  what  is 
realized.  Usually  but  little  is  left  to  the  creditor. 
Why  would  it  not  be  better  to  stay  execution  on 
all  judgments  a  reasonable  time,  to  be  fixed  and 
graduated  according  to  the  size  of  the  judgment 
and  the  ability  of  the  defendant  to  pay,  during 
which  time  he  would  have  an  opportunity  to  obey 
the  judgment  of  the  court  ?  The  judgment  should 
during  this  time  operate  as  a  lien  upon  all  the 
defendant's  property,  and  he  should  be  restrained 
from  selling  or  disposing  of  any  property  except 
to  pay  the  judgment.  At  the  end  of  the  period 
thus  allowed  him,  if  the  defendant  has  not  paid 
the  judgment  or  sold  all  his  property  not  exempt 
by  law,  and  applied  the  proceeds  on  the  judgment 
against  him,  the  plaintiff  should  have  a  right  to 
have  execution  issued  and  all  the  defendant's 
property  sold  except  his  tools,  necessary  house- 
hold furniture  and  wearing  apparel  for  himself 


1 66       FALLACIES  OF  THE  LAW. 

and  family.  If  the  property  thus  sold  does  not 
bring  sufficient  to  satisfy  the  judgment  the  re- 
mainder might  be  collected  in  this  way:  If  the 
court  is  convinced  after  a  proper  hearing  that 
the  judgment  debtor  is  willfully  disobeying  and 
making  no  effort  to  satisfy  its  judgment,  the 
debtor  should  be  compelled  to  work  at  some 
occupation  which  the  creditor  may  procure  for 
him,  and  his  wages  above  the  necessary  cost  of 
his  personal  maintenance  should  go  toward  dis- 
charging the  judgment.  If  he  refuses  to  obey 
the  orders  of  the  court  in  this  respect,  he  should 
be  placed  in  the  hands  of  the  prison  authorities 
as  an  ordinary  criminal  and  made  to  work  under 
them,  and  the  net  product  of  his  labor  should  be 
applied  on  the  judgment.  If  on  the  contrary  it 
appears  to  the  court  on  the  hearing  that  the 
debtor  is  trying  in  good  faith  to  obey  its  order, 
but  is  so  circumstanced  that  he  can  not  pay  the 
debt,  he  should  not  be  molested  nor  deprived  of 
his  liberty,  and  after  the  lapse  of  five  years  the 
right  to  enforce  judgment  should  cease.  Dis- 
charges in  bankruptcy  should  be  allowed  only  to 
those  who  convince  the  court  that  the  indebted- 
ness against  them  was  contracted  in  good  faith, 
and  that  the  amount  is  so  large  that  there  is  no 
reasonable  probability  that  they  will  ever  be  able 


FALLACIES  OF  THE  LAW.        1 6/ 

to  pay  it.  Under  such  circumstances  the  court 
might  fix  the  sum  which  it  appears  probable  the 
debtor  could  pay  within  the  next  five  years,  and 
then  discharge  him  from  the  excess.  All  dis- 
charges might  be  set  aside  whenever  it  is  made 
to  appear  that  the  debtor  is  willfully  violating 
the  judgments  of  the  court.  This  method  would 
give  the  honest  debtor  a  much  better  chance  than 
he  now  has  to  save  his  property  from  being  sac- 
rificed, and  make  it  more  difficult  for  the  dishon- 
est one  to  escape  paying  his  just  debts. 

Where  the  plaintiff  seeks  compensation  for 
injuries  that  are  criminal  in  their  nature,  no  re- 
dress that  merely  punishes  the  defendant  is  com- 
plete. Mankind  have  not  yet  reached  a  plane 
where  they  can  be  satisfied  without  gratifying 
the  passion  for  revenge,  and  crimes  that  horrify 
the  public — such  as  treason,  rape  and  murder — 
will  continue  to  provoke  a  desire  for  swift  and 
severe  retaliation  by  doing  bodily  harm  to  the 
criminal.  Legislatures  must  deal  with  human 
nature  as  it  is,  and  not  follow  even  the  dreams 
of  the  loftiest  minds  when  they  do  not  accord 
with  the  common  sentiment  of  the  community. 
The  law  must  have  the  sword  behind  it,  and  this 
common  sentiment  is  the  power  which  wields  the 
sword.    We  should  not,  however,  in  glutting  the 


1 68        FALLACIES  OF  THE  LAW. 

desire  for  vengeance,  forget  those  who  have  suf- 
fered the  most  from  the  crime.  As  far  as  possi- 
ble they  should  be  compensated  for  their  losses. 
Taking  the  life  of  a  criminal  may  sometimes  be 
necessary  to  satisfy  the  public  demand  and  to 
deter  others  from  committing  a  like  offense,  but 
where  this  can  be  avoided  the  life  of  the  wrong- 
doer should  be  saved  and  he  should  be  compelled 
to  use  it  for  the  purpose  of  compensating  the 
public  for  the  expense  of  his  trial  and  compen- 
sating the  victim  or  the  victim's  dependents  for 
their  losses.  To  what  extent  the  fear  of  severe 
punishment  deters  the  commission  of  crimes  may 
long  be  a  controverted  question.  Many  may 
contend  that  it  has  no  effect  on  those  who  are 
disposed  to  commit  the  greatest  crimes.  It  is 
probable  that  its  effect  in  this  respect  is  greatly 
overestimated  on  account  of  the  unsound  or  reck- 
less mental  structure  of  those  who  commit  such 
offenses.  It  is  probable  that  the  legal  taking  of 
human  life  by  the  sheriff  does  more  injury  than 
benefit  to  the  community.  In  that  community 
where  public  sentiment  regards  human  life  so 
sacredly  that  it  is  never  allowed  to  be  taken  ex- 
cept in  self-defense  it  may  be  much  safer  than  it 
is  in  that  community  where  frequent  hangings 
occur.     The  reader  may  not  agree  with  this,  but 


FALLACIES  OF  THE  LAW.        1 69 

he  will  surely  concede  that  a  live  man,  when  he 
can  be  made  to  work  and  perform  valuable  ser- 
vice, is  ordinarily  worth  more  than  a  dead  one, 
and  it  is  a  most  unprofitable  use  to  make  of  a 
strong,  healthy  man  to  kill  him  at  the  public 
expense,  or  even  to  confine  him  in  idleness  in  a 
dungeon.  Where  it  is  possible  to  utilize  their 
services  criminals  should  be  so  employed  as  to 
produce  the  largest  amount  in  value  consistent 
with  the  public  safety.  Embezzlers,  thieves, 
holdup  men,  thugs,  swindlers,  and  such  crimi- 
nals, when  convicted,  should  be  compelled  by 
labor  to  compensate  the  state  and  their  victims 
for  the  losses  caused  by  their  misconduct.  This 
should  be  done  without  corporal  punishment  if 
possible,  but  the  state  should  not  hesitate  to  use 
such  punishment  where  it  is  necessary  to  make 
criminals  practice  the  precepts  of  justice.  This 
method  may  be  far  from  perfect,  but  it  certainly 
would  be  an  improvement  on  the  present  system, 
which  not  only  furnishes  no  reparation  for  losses 
caused  by  the  wrongdoers,  but  usually  destroys 
them  or  disables  them  from  making  any  repa- 
ration. 


CHAPTER  XV. 

FUNDAMENTAL   ERRORS. 

There  are  two  errors  which  He  at  the  very 
foundation  of  our  system  of  government.  One 
is  the  doctrine  of  precedent;  the  other  the  gen- 
eral belief  that  all  men  should  be  eligible  to  vote 
and  hold  office  without  any  proof  of  their  fitness. 

I.  The  doctrine  of  precedent.  Some  nations 
worship  the  graves  of  their  ancestors,  and  a 
sentiment  of  reverence  for  the  old  abides  in  the 
breasts  of  most  of  the  inhabitants  of  the  earth. 
The  infant  is  deeply  impressed  by  the  superiority 
of  the  parent  and  naturally  exalts  his  acts  be- 
yond their  merit.  Out  of  this  has  grown  the 
belief  that  our  fathers  were  wiser  than  we  are 
and  that  what  they  have  done  should  not  be 
undone;  that  all  their  precepts  should  be  rever- 
enced and  followed  in  the  conduct  of  the  organi- 
zation which  they  brought  into  being.  Where 
they  sat  in  positions  of  authority  and  made 
rulings  or  declarations  pointing  the  path  which 
in  their  opinion  led  to  safety,  their  acts  and  con- 
duct became  precedents  having  the  force  of  law; 


FALLACIES  OF  THE  LAW.       I /I 

and  when  they  sat  in  judicial  tribunals  and  de- 
cided controversies  that  came  before  them  their 
decisions  must  stand  as  guides  for  subsequent 
judges  for  all  time.  Thus  have  the  records  of 
the  past  come  to  assume  the  utmost  importance 
in  governing  the  present  and  shaping  the  destiny 
of  the  future.  This  reverence  for  precedent  is  a 
sort  of  superstition  which  a  little  critical  exami- 
nation will  do  much  to  clear  away.  Instead  of 
assuming  that  our  fathers  were  wiser  than  we 
are  we  ought  to  assume  that,  other  things  being 
equal,  we  should  be  wiser  than  they ;  for  we  have 
the  benefit  of  all  their  experience,  and  sources  of 
information  which  they  did  not  have.  Their 
decisions  may  have  been  adapted  to  their  envi- 
ronments and  have  been  wisely  made,  but  in  the 
meantime  the  environment  has  changed,  so  that 
what  with  them  may  have  been  timely  and  proper 
has  now  become  obsolete.  We  can  never  know 
precisely  the  causes  which  operated  upon  their 
minds,  and  without  such  knowledge  we  have  no 
criterion  by  which  we  can  pass  upon  the  wisdom 
of  their  actions.  Assuming  them  to  have  been 
always  pure  in  their  purposes  and  diligent  in 
their  investigation,  still  many  of  the  elements  that 
entered  into  their  decisions  prevent  them  from 
being  infallible  guides.     In  every  other  depart- 


172        FALLACIES  OF  THE  LAW. 

ment  of  our  activities  we  recognize  the  possibility 
of  improvement  and  proceed  with  experiments  to 
find  a  better  way.  We  laugh  when  we  see  the 
Egyptian  peasant  plowing  with  the  same  kind  of 
crooked  stick  which  was  used  by  his  ancestors  at 
the  time  the  pyramids  were  built.  Yet  this  is  the 
doctrine  of  precedent  put  into  use  in  agriculture. 
The  experience  of  those  who  have  preceded  us, 
when  known,  is  useful  for  all  the  light  that  can 
be  derived  therefrom,  but  when  in  the  framing  of 
a  statute  or  the  making  of  a  decision  the  question 
arises  as  to  what  is  justice,  the  opinion  of  no  one 
either  dead  or  alive  should  possess  authority. 
The  person  clothed  with  the  duty  to  act,  and 
having  the  power  to  decide,  after  enlightening 
his  mind  with  all  the  means  of  information  at  his 
command,  should  do  as  his  first  ancestor  is  pre- 
sumed to  have  done,  that  is,  follow  his  own  judg- 
ment. By  this  method  we  free  ourselves  from 
the  shackles  of  superstition  and  take  a  position 
that  permits  of  progress.  Had  every  one  clothed 
with  official  power  nailed  himself  to  the  dry  log 
of  ancient  precedent  no  progress  whatever  would 
have  been  made.  All  improvement  is  due  to  the 
men  who  have  been  brave  and  honest  enough  to 
defy  precedent  in  their  quest  of  the  right.  No 
judge  should  stultify  his  conscience  by  following 


FALLACIES  OF  THE  LAW.       1 73 

any  decision  which  he  believes  to  be  unjust  and 
contrary  to  the  purpose  of  the  law:  not  even  his 
own  decision  should  be  permitted  to  shackle  his 
mind  when  he  believes  it  to  be  wrong.  In  fol- 
lowing his  own  true  judgment  the  judicial  officer 
should  take  into  consideration  all  light  that  may 
emanate  from  reasons  given  in  the  decisions  of 
similar  cases,  but  except  for  the  plain  require- 
ments of  the  law  there  should  be  no  authority  to 
override  his  conscience.  For  the  purpose  of  nul- 
lifying the  effect  of  precedents  the  legislature 
should  by  positive  enactment  destroy  forever 
their  authority  in  judicial  proceedings. 

2.  Qualification  and  election  of  officers.  The 
law  does  not  require  any  mental  qualification  of 
the  occupant  of  public  office,  except  in  minor 
positions,  such  as  school  teachers  and  certain 
offices  coming  within  civil-service  laws  in  cities 
and  in  the  national  government.  A  man  who  is 
not  educated  in  the  laws  of  his  country  is  legally 
qualified  to  occupy  the  position  of  a  judge.  One 
who  is  without  legal  learning  is  legally  compe- 
tent to  occupy  a  seat  in  the  state  legislature  or 
the  national  congress.  Even  the  chief  magistrate 
of  the  nation  is  not  required  by  law  to  possess 
any  qualification  except  that  of  a  natural-born 
male  citizen  of  the  United  States  over  the  age  of 


174       FALLACIES  OF  THE  LAW, 

thirty-five  who  has  resided  in  the  United  States 
for  fourteen  years.  With  the  exceptions  here 
stated  not  only  the  rank  and  file  of  the  official 
army,  but  every  officer  in  it,  from  the  highest  to 
the  lowest,  may  seek  the  place  and  occupy  it 
vwithout  presenting  any  proof  of  the  education, 
'skill  or  training  necessary  to  fit  him  for  the  func- 
tions he  proposes  to  discharge.  The  voter  is  not 
required  to  possess  education,  skill  or  training, 
and  he  who  may  be  without  character  or  patriotic 
sentiment  is  expected  to  select  from  the  many 
candidates  who  aspire  to  the  various  offices  the 
ones  best  fitted  to  fill  them.  The  candidates 
either  select  themselves  or  are  selected  through 
the  agency  of  political  parties.  These  parties 
are  but  a  combination  formed  for  the  pecuniary 
profit  of  those  who  manage  them.  The  names  of 
the  candidates  selected  are  placed  upon  a  ticket 
on  which  there  are  other  names  of  candidates  for 
the  same  office.  For  one  of  these  the  voter  must 
vote,  if  his  ballot  is  to  have  any  influence  in  the 
selection.  Ordinarily  he  has  no  knowledge  what- 
ever of  the  function  of  the  office  or  the  ability 
required  to  discharge  its  duties.  He  usually  has 
no  reliable  information  as  to  the  character,  intel- 
ligence, skill  or  experience  possessed  by  the 
candidate. 


FALLACIES  OF  THE  LAW,       1 75 

Such  a  system  is  calculated  to  bring  to  the 
front  for  political  preferment  the  boldest,  most 
self-serving  and  least  patriotic  elements  in  the 
community.  Even  the  office  of  president  of  the 
United  States  may  be  filled  by  men  without  ex- 
tensive experience  and  training  in  discharging 
important  governmental  trusts.  It  may  be  filled 
by  men  with  but  slight  or  no  knowledge  of  the 
laws  and  constitution  of  the  nation.  It  may  be 
filled  by  men  who  are  not  fitted  for  association 
with  persons  of  dignity  and  deliberate  judgment, 
and  by  men  not  suited  to  deal  with  the  high  offi- 
cials connected  with  such  an  office.  Mere  noto- 
riety won  in  military  service,  or  that  popular 
idolatry  inspired  by  success  in  a  single  military 
exploit,  may  be  sufficient  to  lift  a  man  possessing 
no  mental  qualifications  therefor  into  the  presi- 
dential chair,  and  even  on  to  the  bench.  Large 
wealth,  either  inherited  or  acquired  honorably  or 
dishonorably,  may  be  sufficient  to  elevate  its 
possessor  to  the  loftiest  seat  in  the  state  or  na- 
tional government.  Ill  gotten  wealth,  combined 
with  that  shrewdness  and  astute  knowledge  of 
human  nature  and  its  weaknesses  which  are  the 
means  of  getting  it,  will  continue  to  be  a  most 
potent  factor  in  providing  officials  while  there 
are  no  other  legal  qualifications  than  now  exist 


176       FALLACIES  OF  THE  LAW, 

and  officials  are  selected  in  the  method  now  pre- 
vailing. 

Perhaps  it  is  not  necessary  to  expatiate  upon 
the  results  of  this  system  and  its  effect  upon  the 
public  service.  The  incompetency  abounding  in 
'  almost  every  department  of  the  government  is 
known  to  all.  The  entire  service  is  crippled  by 
it.  Every  year  this  is  growing  worse  as  wealth 
increases  and  the  matters  requiring  governmen- 
tal action  become  more  complex. 

Unless  radical  changes  can  be  effected  in  this 
machinery  the  prospects  of  substantial  better- 
ment are  very  vague.  How  can  an  electorate, 
composed  of  voters  who  are  themselves  incompe- 
tent to  judge,  be  expected  to  select  competent 
officials  under  a  system  where  they  are  really 
given  no  choice  ?  How  can  officials  who  have 
procured  themselves  to  be  selected  by  corruption 
and  promises  of  favor  be  expected  after  they  are 
elected  to  select  or  appoint  other  officials  who 
will  not  partake  of  the  nature  of  those  who  have 
selected  them  ?  We  should  not  be  surprised  to 
find  every  department  of  the  government  satura- 
ted with  corruption,  but  wonder  that  any  faithful 
officials  are  thus  selected.  Considering  how  the 
judiciary  is  provided,  it  seems  almost  miraculous 
that  so  many  good  men  have  been  chosen. 


FALLACIES  OF  THE  LAW.        1 77 

To  propose  a  system  that  will  completely 
remedy  the  evils  of  the  present  is  certainly  a  dif- 
ficult task.  The  problem  is  how  to  allow  all  the 
members  of  the  community  the  right  of  voting 
and  at  the  same  time  enable  them  to  select  com- 
petent and  faithful  officials.  No  one  can  intel- 
ligently select  an  officer  from  a  list  containing 
names  of  persons  unknown  to  him.  Therefore 
there  must  be  devised  a  method  by  which  those 
who  vote  directly  for  candidates  may  become 
acquainted  with  the  functions  of  the  ofl&ces  to  be 
filled  and  the  capacity  of  the  various  candidates 
to  discharge  these  functions. 

As  a  possible  method  of  accomplishing  this 
purpose  I  suggest  that  the  voters  be  divided  into 
neighborhood  groups,  each  group  composed  of  a 
certain  number,  say  one  hundred.  This  would 
enable  the  members  of  each  group  to  become 
acquainted  with  each  other  and  to  act  together  in 
selecting  representatives  from  their  number  to 
act  for  them.  These  groups  of  one  hundred 
qualified  electors  might  each  elect  representatives 
empowered  to  act  for  them  in  electing  city  and 
county  officials,  and  representatives  to  act  in  the 
selection  of  state  and  national  officials.  Where 
the  number  of  representatives  became  so  large 
that  it  would  be  impracticable  for  them  to  come 


178       FALLACIES  OF  THE  LAW, 

together  and  act  in  a  body,  as  would  probably  be 
the  case  in  the  selection  of  officials  in  large  cities 
and  in  the  state  and  nation,  these  representatives 
could  be  divided  into  groups  of  thousands  or 
some  multiple  of  the  whole  number,  and  these 
last-named  groups  could  select  representatives 
from  their  number  and  empower  them  to  act  in 
electing  the  officials.  In  this  way  it  would  be 
possible  for  all  the  electors  in  the  groups  of  one 
hundred  to  know  each  other  and  the  representa- 
tives that  they  selected,  and  they  would  have  the 
means  of  ascertaining  the  fitness  of  their  repre- 
sentatives and  could  hold  them  responsible  for 
the  faithful  discharge  of  their  duties.  It  would 
also  be  possible  for  the  representatives  voting 
directly  for  candidates  to  ascertain  the  qualifica- 
tions of  each  candidate;  also  the  qualifications 
of  representatives  that  they  selected.  Under 
this  system  no  voter  would  need  to  vote  for  a 
candidate  without  knowing  his  qualifications. 

This  is  but  the  application  of  the  principle  of 
agency  to  the  management  of  the  government. 
It  is  the  principle  employed  in  every  large 
undertaking,  and  the  one  that  must  be  employed 
where  the  number  of  people  who  act  together 
is  so  great  and  covers  so  extensive  an  area  that 
it  is  impracticable  for  each  member  to  obtain 


FALLACIES  OF  THE  LAW.        179 

the  information  necessary  for  intelligent  action. 
Under  this  system,  however,  it  might  happen 
that  unfit  men  would  occasionally  be  selected, 
and  as  a  double  precaution  the  law  should  fix 
the  qualifications  of  candidates  and  provide  a 
method  by  which  they  must  prove  their  qualifica- 
jtions  before  they  become  eligible  for  the  offices 
to  which  they  aspire.  It  is  not  necessary  to  enter 
into  details  as  to  the  manner  of  furnishing  this 
proof  or  the  persons  to  whom  it  should  be  fur- 
nished. We  need  only  to  apply  to  positions  of 
greater  importance  a  principle  already  in  use  in 
selecting  minor  officials  in  cities  and  in  the  de- 
partments of  the  national  government.  Perhaps 
in  some  positions  a  good  character,  ordinary  in- 
telligence and  experience  in  similar  matters  are 
all  that  would  need  be  required;  but  in  positions 
of  great  responsibility,  needing  much  skill  and 
learning,  the  candidate  should  prove  his  qualifi- 
cations, not  only  by  examination  but  by  a  term 
of  experience  wherein  he  has  demonstrated  to  the 
public,  in  positions  of  perhaps  less  importance, 
that  he  possesses  the  high  character  and  capacity 
required  for  the  trust  imposed. 

It  will  be  observed  that  this  system  relieves 
the  community  from  the  enormous  expense  now 
required  to  conduct  the  general  elections,  and  it 


l8o       FALLACIES  OF  THE  LAW. 

retires  from  power  that  army  of  professional  poli- 
ticians who  depend  upon  the  public  treasury  for 
their  forage.  It  permits  no  one  to  urge  a  claim 
to  an  office  because  he  has  served  some  party, 
and  compels  all  to  rely  solely  upon  their  fitness 
as  a  reason  for  their  selection.  But  it  might  be 
well  to  adopt  still  another  precaution  and  make 
personal  solicitation  a  cause  of  disqualification, 
and  make  it  a  criminal  offense  for  any  repre- 
sentative to  vote  for  a  candidate  related  to  him 
nearer  than  the  fourth  degree,  or  to  vote  for  one 
in  whose  election  he  has  a  financial  interest. 

It  may  be  objected  that  this  system  deprives 
the  voter  of  all  opportunity  to  vote  directly  for 
the  officials.  If  it  is  desired  to  continue  the 
practice  of  voting  directly  for  officers,  the  rep- 
resentatives, instead  of  electing  ofl&cials,  might 
nominate  a  certain  number  of  candidates  for  each 
ofi&ce,  and  allow  the  qualified  voters  to  choose 
their  officials  from  the  list  of  nominees.  This  of 
course  would  entail  upon  the  public  the  expense 
of  conducting  the  elections  and  the  burden  of 
procuring  the  specific  information  necessary  to 
an  intelligent  choice,  and  while  it  might  insure 
competent  officials,  it  would  not  eliminate  the 
expense,  turmoil,  scandal,  vituperation  and  gen- 
eral corruption  and  intimidation  now  prevalent. 


CHAPTER  XVI. 
UNJUST  DISTRIBUTION  OF  POLITICAL  POWER. 

The  right  of  one  to  rule  another  must  ema- 
nate either  from  divine  sources  or  from  some 
arrangement  agreed  to  between  the  ruler  and  the 
ruled.  The  divine  idea  was  rejected  by  the  foun- 
ders of  this  government.  They  declared  that  all 
governments  derive  their  just  powers  from  the 
consent  of  the  governed. 

As  the  necessity  for  some  government  exists 
in  a  social  community,  it  is  assumed  that  those 
who  become  members  consent  to  the  authority  of 
the  government  in  existence  when  they  become 
such.  This  presumption,  however,  must  be  based 
upon  justice ;  for  authority  which  is  not  believed 
to  be  just  can  not  long  exist.  A  government 
which  assumes  to  be  founded  upon  the  consent  of 
the  governed  is  manifestly  unjust  unless  it  pro- 
vides a  way  by  which  the  consent  of  the  gov- 
erned may  be  ascertained.  It  is  also  unjust  if 
the  method  thus  provided  does  not  confer  upon 
each  member  of  the  government  an  equal  right 
to  express  his  consent  or  dissent.    Any  discrimi- 


1 82        FALLACIES  OF  THE  LAW, 

nation  which  gives  more  legal  weight  to  the  voice 
of  one  than  to  that  of  another  is  likewise  unjust. 
Circumstances  sometimes  are  such  that  it  be" 
comes  necessary  for  the  common  good  to  deprive 
some  persons  of  equal  political  rights.  Thus 
lunatics  and  infants,  because  deficient  in  mental 
capacity,  are  allowed  no  political  rights,  and  per- 
haps some  who  can  not  be  classed  with  either 
are  yet  so  lacking  in  mentality  that  they  should 
be  considered  in  a  condition  of  tutelage  and  be 
denied  a  voice  in  the  government.  But  all  per- 
sons recognized  by  law  as  mentally  capable  of 
binding  themselves  by  contract  and  of  managing 
their  own  affairs  should  be  accorded  equal  politi- 
cal rights,  and  these  rights  should  not  be  taken 
from  them  except  as  punishment  for  such  crimes 
as  cause  a  forfeiture  of  liberty.  Measured  by 
this  standard,  there  are  several  methods  by  which 
the  political  power  of  the  nation  is  unjustly  dis- 
tributed. The  general  and  wholesale  denial  of 
political  rights  to  women  has  been  referred  to 
already,  and  needs  no  discussion.  The  laws  in 
some  of  the  Southern  States  requiring  educa- 
tional qualifications,  and  having  the  effect  of  dis- 
franchising many  of  the  black  race,  have  a  much 
better  foundation.  The  difficulty  in  applying  an 
educational  test  and  its  liability  to  abuse  make  it 


FALLACIES  OF  THE  LAW.        183 

a  dangerous  experiment.  Where  attempted,  it 
should  certainly  be  reasonable  and  should  be 
made  to  operate  upon  all  of  the  unfit  without 
regard  to  race  or  color. 

Passing  the  disfranchisement  of  women  and 
the  ignorant,  there  are  in  operation  organic  laws 
which  unjustly  distribute  political  power  among 
those  who  are  legally  qualified  as  voters. 

I.  The  Senate  of  the  United  States.  No  fed- 
eral statute  can  be  enacted,  no  appropriation  of 
money  be  made,  no  declaration  of  war,  no  treaty 
of  peace  or  other  treaty  can  be  made,  and  no  im- 
portant federal  office  filled,  without  the  approval 
of  the  Senate  of  the  United  States.  Obviously 
the  Senate  possesses  a  very  large  share  of  the 
political  power  of  the  nation.  How  is  it  selected, 
and  from  what  sources  does  it  derive  its  power  ? 
It  is  supposed  to  be  selected  by  the  states,  and 
each  state  without  regard  to  its  population  is 
entitled  to  select  two  members.  The  little  states 
of  Nevada,  Delaware  and  Rhode  Island  are  given 
in  selecting  it  as  much  political  power  as  the 
great  states  of  New  York,  Pennsylvania  and  Illi- 
nois. States  but  recently  organized  in  the  un- 
settled West  are  thereby  given  as  much  political 
power  as  is  possessed  by  the  densely  populated 
states  of  the  Union.    It  is  not  true  that  the  Sen- 


1 84       FALLACIES  OF  THE  LAW, 

ate  represents  the  states.  The  presumption  that 
it  does  is  a  mere  fiction  of  law.  A  state  is  not 
a  being  which  has  an  actual  existence.  It  is  a 
political  corporation,  and  like  any  other  corpora- 
tion is  merely  a  name  under  which  certain  people 
exercise  certain  legal  rights.  The  Senator  from 
Delaware  does  not  in  fact  represent  the  state. 
He  should  represent  the  qualified  voters  of  the 
state.  They  are  the  sources  of  his  political 
power.  Now  by  the  operation  of  this  scheme 
one  voter  in  the  state  of  Nevada,  with  its  popula- 
tion of  about  42,000,  possesses  more  than  one 
hundred  and  seventy  times  as  much  political 
power  in  the  United  States  Senate  as  a  voter  in 
the  state  of  New  York,  with  its  population  of 
about  7,200,000.  And  according  to  the  United 
States  census  of  1900,  twenty- three  states  with 
an  aggregate  population  of  less  than  13,000,000 
furnished  a  majority  of  the  Senate.  Thus  the 
representatives  of  less  than  one-fifth  of  the  popu- 
lation of  the  United  States  control  that  body. 
How  can  any  just  government  long  tolerate  so 
unequal  a  distribution  of  political  power  ?  There 
are  five  states  whose  population  according  to  the 
census  of  1900  was  less  than  100,000  each  and 
two  whose  population  was  more  than  6,000,000. 
Many  of  these  small  states  are  in  the  unsettled 


FALLACIES  OF  THE  LAW,        185 

West,  and  some  of  them  will  increase  relatively 
in  population.  The  inhabitants  of  Nevada,  ac- 
cording to  the  United  States  census,  diminished 
from  1890  to  1900,  and  some  of  the  other  states 
made  but  slight  increase.  If  the  arid  lands  of 
Nevada  or  any  of  the  barren  hills  and  mountains 
of  New  England  are  in  the  future  abandoned  for 
more  fertile  regions,  there  will  always  remain 
enough  politicians  in  those  states  to  keep  up  a 
state  government  and  elect  two  members  of  the 
United  States  Senate. 

The  present  unequal  distribution  of  political 
power  in  the  Senate  is  certainly  shocking  to  con- 
template, but  it  is  scarcely  a  symptom  of  what 
the  future  is  likely  to  bring  forth.  When  the 
fertile  lands  of  the  Ohio  and  Mississippi  valleys 
have  acquired  a  population  commensurate  with 
their  capacity  to  support  the  wants  of  civilized 
life,  and  the  barren  hills,  mountain  ranges  and 
arid  deserts  of  the  East  and  West  have  been  ex- 
hausted of  their  mineral  resources  and  denuded 
of  their  means  to  sustain  a  population,  there  may 
then  be  seen  five  hundred  millions  of  people 
blocked  in  every  effort  at  national  legislation  by 
a  combination  of  small  states  controlled  by  spe- 
cial interests  that  will  use  the  United  States  Sen- 
ate as  their  principal  means  of  obstruction. 


1 86       FALLACIES  OF  THE  LAW, 

The  Senate  came  into  being  on  account  of  the 
reverence  our  English  fathers  had  for  the  Eng- 
lish system.  As  they  had  abolished  all  legal 
rank  and  title,  the  House  of  Lords  could  not  be 
instituted,  and  so  the  Senate  was  provided  as  a 
substitute.  The  House  of  Lords  accords  well 
with  the  divine  right  of  kings  and  with  the  acqui- 
sition of  political  power  by  inheritance:  it  is 
consistent  with  and  helps  to  sustain  the  British 
throne.  But  the  Senate  is  clearly  inconsistent 
with  the  idea  of  a  government  deriving  its  just 
powers  from  the  consent  of  the  governed. 

There  is  a  growing  sentiment  in  favor  of  a 
change  in  the  Federal  Constitution  so  as  to  elect 
the  Senate  of  the  United  States  by  the  direct 
vote  of  the  people.  This  can  afford  but  slight 
relief.  Nothing  short  of  an  amendment  which 
will  distribute  the  representation  in  the  Senate 
among  the  people  of  the  various  states  in  pro- 
portion to  their  population  will  remedy  this 
serious  defect.  The  Constitution  of  the  United 
States  provides  "that  no  state,  without  its  con- 
sent, shall  be  deprived  of  its  equal  suffrage  in 
the  Senate,"  This  provision  was  intended  by 
the  citizens  of  the  United  States  to  be  an  express 
covenant.  The  hands  that  placed  it  there,  and 
those  they  represented,  are  no  longer  subjects  of 


FALLACIES  OF  THE  LAW.        1 87 

mortal  governments,  but  the  fetters  which  they 
thus  intended  to  place  upon  posterity  remain. 
If  the  question  ever  comes  before  the  United 
States  Supreme  Court,  that  body  will  probably 
declare  that  this  provision  has  the  effect  of  pre- 
venting any  legal  alteration  in  the  Constitution 
so  as  to  deprive  the  states  of  equal  representa- 
tion in  the  Senate,  and  any  new  constitutional 
amendment  which  the  people  may  adopt  will  be 
held  invalid  if  it  plainly  has  that  effect. 

Another  method  of  removing  this  unjust  dis- 
tribution of  political  power  would  be  to  abolish 
the  Senate  by  constitutional  amendment.  To  do 
this  would  require  ratification  by  three-fourths 
of  the  states,  acting  either  through  their  legis- 
latures or  by  constitutional  conventions.  This 
would  be  easier  than  getting  the  unanimous  con- 
sent of  the  small  states;  yet  it  would  be  very 
difficult,  because  the  consent  of  more  than  half 
the  small  states  would  be  necessary.  Such  an 
amendment  might  fail  after  its  adoption.  The 
court  might  decide  it  to  be  a  violation  of  the  said 
provision,  on  the  ground  that  it  was  an  attempt 
to  do  indirectly  what  could  not  be  done  directly. 
This,  however,  is  hardly  probable,  because  the 
power  to  amend  the  Constitution  necessarily 
carries  with  it  the  power  to  change  it  in  every 


1 88        FALLACIES  OF  THE  LAW. 

respect  except  in  the  one  expressly  forbidden. 
If  the  Senate  were  abolished  no  state  could  prop- 
erly claim  that  its  suffrage  therein  was  not  equal 
to  other  states.  This  appears  the  easiest  way  to 
rid  ourselves  of  this  unjust  feature  in  our  national 
government.  Whether  it  should  be  taken  is  a 
question  upon  which  volumes  might  be  written. 
The  value  of  the  Senate  as  a  legislative  body  is 
a  subject  about  which  men  will  differ,  but  no  ons 
will  question  the  truth  of  the  statement  that  it  is 
based  upon  an  unjust  distribution  of  politica.1 
power.  No  amount  of  efficient  service  on  the 
part  of  the  members  of  that  body  can  make  this 
feature  consistent  with  the  fundamental  principles 
of  a  just  government.  The  power  thus  unjustly 
concentrated  will  always  be  liable  to  abuses  of 
the  most  dangerous  character,  and  the  sooner  the 
defect  is  remedied  the  safer  will  be  the  Federal 
Government. 

2.  The  method  provided  for  electing  the  Pres- 
ident and  Vice  President  of  the  United  States  is 
subject  to  an  objection  of  a  similar  nature.  They 
are  selected  by  electors  elected  in  the  various 
states.  Each  state  is  allowed  two  electors  with- 
out regard  to  its  population,  and  to  that  extent 
the  voters  of  small  states  are  given  greater  po- 
litical power  in  the  choice  of  these  officers  than 


FALLACIES  OF  THE  LAW.        1 89 

are  those  of  larger  states.  The  effect  of  this 
method  is  felt  in  many  parts  of  the  govern- 
mental machinery,  because  of  the  extraordinary 
power  bestowed  upon  the  President.  He  has  a 
veto  power  by  which  he  may  prevent  any  act 
passed  by  Congress  from  becoming  a  law,  unless 
two-thirds  of  the  members  of  both  houses  vote  to 
pass  it  against  his  veto.  Thus  does  he  possess 
more  power  to  prevent  legislation  than  sixty-five 
members  of  the  House  and  fifteen  members  of 
the  Senate  combined.  Indirectly  he  possesses 
much  greater  power  than  this.  He  has  the  power 
to  nominate  all  important  federal  officers,  includ- 
ing members  of  the  courts,  ambassadors,  consuls, 
cabinet  ministers,  and  many  thousand  other  offi- 
cers little  and  big.  Thus  he  is  able  to  reward 
his  supporters  and  punish  his  opponents,  and 
exercise  an  immense  influence  over  members  of 
Congress,  which  may  be  used  either  as  a  lubri- 
cator or  a  brake  in  legislative  matters.  He  can 
usually  promote  or  prevent  the  passage  of  any 
measures  as  he  desires.  Any  defect,  therefore, 
in  his  title  is  very  important,  and  the  fact  that  he 
is  elected  by  an  unjust  distribution  of  political 
power  deserves  the  highest  consideration. 

3.  The  federal  judiciary,  which  compose  the 
entire  judicial  branch  of  the  national  govern- 


I90       FALLACIES  OF  THE  LAW. 

ment,  derive  their  powers  from  the  President  and 
the  Senate,  and  their  titles  are  therefore  affected 
by  this  unjust  distribution.  Thus  we  see  how 
the  virus  of  injustice  permeates  the  structure  of 
our  federal  system  to  its  very  marrow. 


CHAPTER  XVII. 

SURVIVALS    OF    MONARCHY. 

I.  Life  terms  for  officials.  A  people  can  not 
govern  themselves  through  representatives  unless 
they  possess  the  right  to  choose  the  officials  in- 
trusted with  political  power  and  to  change  them 
at  frequent  intervals.  The  federal  judges  are 
appointed  by  the  President  of  the  United  States 
for  life  terms.  Their  fitness  is  not  considered  by 
any  direct  representative  of  the  voters.  They 
are  as  far  removed  from  the  will  of  the  qualified 
voters  as  the  members  of  the  House  of  Lords  or 
the  king  of  England.  The  people  are  thus  pre- 
vented from  using  their  political  power  to  procure 
for  their  government  the  best  persons  attainable. 
If  an  unfit  person  secures  an  appointment,  or 
becomes  unfit  after  he  is  appointed,  they  must 
wait  for  the  hand  of  death  to  remove  him  before 
a  person  fit  to  discharge  the  duties  of  the  high 
place  can  be  appointed.  If  this  anomaly  was 
not  intended  to  stifle  the  popular  will,  those 
who  designed  it  must  have  been  blind  to  its  nat- 
ural tendency.     It  is  difficult  to  believe  that  the 


192        FALLACIES  OF  THE  LAW. 

originators  of  this  judicial  system  really  had 
confidence  in  the  ability  of  the  people  to  govern 
themselves.  No  reference  will  be  made  to  the 
character  of  those  who  have  been  appointed  to 
these  life  offices.  It  would  serve  no  useful  pur- 
pose to  cloud  this  argument  with  such  personali- 
ties. Fortunately  the  highest  court  in  the  system 
has  usually  had  the  confidence  of  the  public,  and 
its  decisions  have  been  generally  acquiesced  in 
as  correct  expositions  of  the  law.  It  requires  no 
prophetic  eye,  however,  to  foresee  the  disaster 
likely  to  come  if  the  people  lose  confidence  in  the 
Supreme  Court  of  the  United  States.  The  unfit- 
ness of  the  life  term  of  office  to  a  popular  govern- 
ment is  apparent,  and  the  great  disadvantages 
and  dangers  that  flow  from  it  can  easily  be  com- 
prehended. Each  part  of  our  political  structure 
ought  to  be  subject  to  the  popular  will  in  the 
selection  of  officials,  and  this  life-term  branch  is 
like  a  paralyzed  limb  on  the  human  body :  it  does 
not  respond  to  the  will  of  the  indwelling  spirit 
of  the  body  politic,  and  thus  is  liable  to  prove  a 
hinderance  to  its  healthy  progress. 

2.  One-man  power.  The  central  idea  of  mon- 
archy is  government  by  a  single  will.  The  cen- 
tral idea  of  a  republic  is  self-government  through 
representatives.     These  representatives  should 


FALLACIES  OF  THE  LAW.       1 93 

be  special  agents  intrusted  for  short  periods  with 
such  duties  as  they  are  capable  of  discharging. 
They  should  act  as  servants  and  not  as  masters 
of  the  people.  If  an  agent  of  a  republic  is  in- 
trusted with  great  general  powers,  and  he  exer- 
cises these  by  controlling  other  officials  whom  he 
may  appoint  or  discharge  at  pleasure,  he  pos- 
sesses the  powers  of  a  monarch,  and  there  is  but 
a  thin  partition  between  a  republic  thus  ruled  and 
a  monarchy.  The  office  of  the  President  of  the 
United  States,  on  account  of  the  extensive  power 
placed  in  the  hands  of  its  occupant,  is  essentially 
monarchical,  and  the  person  who  holds  it  is  for 
the  time  clothed  with  .more  authority  than  most 
monarchs  possess.  Extend  his  term  for  life,  and 
allow  him  to  select  his  successor,  and  he  becomes 
a  monarch  in  every  respect.  He  is  now  an  elec- 
tive monarch  with  no  constitutional  limit  upon 
the  length  of  time  he  may  hold  the  position,  pro- 
vided he  can  secure  his  re-election  when  his  term 
expires.  An  office  with  such  prerogatives  is  in- 
consistent with  the  general  purpose  of  a  republic. 
It  invests  the  occupant  with  more  duties  than 
any  individual  can  properly  discharge,  and  in- 
trusts in  him  more  power  than  any  one  person 
should  possess  or  can  wisely  exercise. 

No  reflection  is  intended  upon  the  character 


194       FALLACIES  OF  THE  LAW. 

or  capacity  of  any  public  official.  Assuming  that 
all  occupants  of  this  office  have  been  as  fit  as  any 
who  could  be  obtained  in  their  time,  they  have 
nevertheless  been  incapable  of  discharging  more 
than  a  small  fraction  of  the  many  duties  which 
have  been  imposed  upon  them  by  the  law.  But 
few  of  them  have  obtained  even  a  general  knowl- 
edge of  the  manifold  functions  which  are  placed 
under  their  control  and  made  subject  to  their  ar- 
bitrary wills.  In  most  instances  where  they  have 
been  called  upon  to  act  they  have  been  compelled 
to  do  so  without  knowledge  and  to  follow  the  ad- 
vice of  others.  If  the  president  is  a  representa- 
tive of  the  people  he  should  represent  all  sections 
of  the  country.  It  is  impossible  for  him  to  do 
this.  Had  he  as  many  heads  as  hydra  and  never 
needed  to  sleep,  he  still  could  not  obtain  the 
information  necessary  to  such  a  task. 

In  all  the  minor  departments  of  government 
the  payrolls  are  stuffed  with  an  unnecessary  num- 
ber of  employes.  Why  should  the  occupants  of 
the  highest  positions  have  more  burdens  placed 
upon  them  than  they  are  capable  of  bearing. 
The  officials  thus  overburdened,  as  in  the  case 
of  the  President,  become  a  sort  of  head  pushers 
who  execute  vast  numbers  of  documents  without 
knowing  their  contents  and  have  but  little  or  no 


FALLACIES  OF  THE  LAW.        1 95 

knowledge  of  the  details  of  the  various  depart- 
ments over  which  they  maintain  control. 

Another  great  objection  to  the  one-man  power 
is  that  it  provokes  the  spirit  of  idolatry.  This  is 
a  survival  of  the  notion  of  the  divinity  of  kings. 
An  appeal  is  thus  made  to  the  imagination  of  the 
ignorant,  who  look  upon  this  executive  head  as 
a  superior  being.  Their  bosoms  swell  with  an 
emotion  that  takes  reason  captive  when  his  name 
is  mentioned.  His  activities  outside  of  his  official 
sphere,  even  where  he  acts  without  knov/ledge 
or  experience,  are  given  extraordinary  weight, 
because  of  his  solitary  position  as  head  of  a  great 
department.  This  adulation  usually^  unfits  the 
oflficer  for  exercising  a  free  and  deliberate  judg- 
ment. He  is,  as  it  were,  continually  on  dress 
parade  as  an  abnormal  person,  and  thus  becomes 
painfully  self-conscious.  It  also  debases  the 
public.  Many  of  its  members  are  all  their  lives 
governed  by  an  ambition  to  reach  this  exalted 
station.  To  attain  it  they  use  as  stepping  stones 
the  other  offices  that  they  acquire,  and  often  stoop 
to  conduct  which  only  this  great  goal  would  in- 
duce. Thus  the  lust  for  abnormal  power  inflames 
and  often  corrupts  great  numbers  of  people,  and 
those  most  unfit  to  possess  it  are  often  the  most 
eager  to  obtain  it.     Would  it  not  be  well  for  the 


196       FALLACIES  OF  THE  LAW, 

nation  to  remove  this  extraordinary  cause  of 
adulation  and  temptation  by  substituting  in  the 
place  of  the  president  a  managing  board  selected 
by  representatives  of  the  people  from  various 
parts  of  the  national  domains,  giving  each  mem- 
ber equal  power  and  authority,  and  allowing  this 
board  to  determine  all  questions  of  general  policy 
by  a  majority  vote  ?  Why  not  apply  here  the 
same  principle  that  is  in  use  in  the  constitution 
of  the  Supreme  Court  of  the  United  States  ?  In 
this  great  court  the  most  important  official  power 
is  divided  among  nine  men,  of  whom  a  majority 
is  necessary  to  render  a  decision.  If  this  court 
were  composed  of  but  one  man,  his  head  would 
certainly  wear  a  halo,  and  he  would  receive  the 
same  adulation  now  accorded  to  the  President. 
The  fact  that  there  are  nine  prevents  any  one 
from  being  idolized.  The  veto  power  should  be 
taken  from  the  executive  departments  in  both 
state  and  nation,  and  the  power  of  appointing 
federal  judges  and  other  important  general  offi- 
cers be  reposed  in  the  direct  representatives  of 
the  people.  The  reasons  here  urged  against  the 
one-man  power  in  the  presidential  office  apply 
with  some  force  to  the  office  of  governor  in  states 
and  mayor  in  cities.  When  there  is  work  enough 
for  several  men  in  discharging  any  duty  of  great 


FALLACIES  OF  THE  LAW,        197 

responsibility,  the  placing  of  one  in  authority 
over  all  the  others  smacks  of  monarchy.  Repub- 
lican institutions  should  be  ruled  by  the  will  of 
a  majority  of  co-equals,  not  by  the  arbitrary 
powers  of  one  man. 

The  unjust  features  in  the  distribution  of  po- 
litical power,  as  above  pointed  out,  should  be 
eliminated,  and  all  ofl&cials  so  situated  that  they 
must  in  the  administration  of  the  government 
respond  to  the  will  of  the  majority  of  the  people 
as  expressed  accurately  by  their  faithful  repre- 
sentatives. Nothing  of  a  revolutionary  character 
is  advocated  herein,  unless  it  is  revolutionary  to 
insist  on  the  substitution  of  the  true  for  the  false, 
the  real  for  the  fictitious.  We  have  had  enough 
of  sham  law,  fictitious  evidence  and  dummy  trials 
and  bogus  judgments,  and  have  seen  enough  of 
the  counterfeit  in  governmental  affairs.  Are  we 
not  tired  of  the  expense,  sick  of  the  disappoint- 
ments, and  disgusted  with  the  false  pretenses  ? 
We  have  worn  gewgaws  and  paste  gems  and  paid 
high  prices  for  them  long  enough :  we  yearn  for 
the  genuine,  and  to  that  end  we  crave  a  change 
in  the  direction  of  honesty  and  truth.  We  insist 
that  our  laws  shall  be  real  laws,  not  mere  legis- 
lative fulminations  that  are  likely  to  be  held 
unconstitutional,  nor  judicial  emanations  which 


198       FALLACIES  OF  THE  LAW. 

any  court  may  hold  unsound.  That  our  judges 
shall  be  real  judges  having  actual  authority,  and 
not  an  apparent  authority  likely  to  become  spu- 
rious in  a  higher  court ;  that  the  capacity  of  those 
who  sit  in  judgment  shall  be  a  real  capacity  that 
fits  them  for  the  discharge  of  their  duties,  not 
mere  legal  capacity  which  may  be  a  cover  for 
ignorance,  prejudice  and  stupidity;  that  the  trial 
shall  be  a  real  trial,  not  a  mistrial  or  a  mere 
wrangle  over  jurisdiction  or  written  pleadings; 
that  the  advocates  should  be  real  advocates  of 
what  they  believe  to  be  real  causes,  not  con- 
scienceless hirelings  who  have  taken  fees  to  ad- 
vocate spurious  claims  or  defenses;  that  the 
evidence  shall  be  real  evidence,  estimated  for  its 
really  convincing  force,  not  a  mass  of  fabrica- 
tions put  forward  for  the  fictitious  force  which 
some  judge  or  legislative  body  in  ancient  times 
may  have  decided  it  should  have;  that  all  the 
proceedings  from  beginning  to  end  shall  be  con- 
centrated to  the  one  aim  of  rendering  and  en- 
forcing a  just  judgment  according  to  the  law. 
If  a  review  is  had  in  a  higher  court,  it  should  be  a 
real  review  of  the  case  on  its  merits,  not  an  ex- 
pensive debate  over  questions  which  do  not  affect 
the  substance  of  the  controversy.  And  when  a 
judgment  is  finally  rendered,  that  it  shall  be  a 


FALLACIES  OF  THE  LAW.        199 

real  judgment,  not  a  mere  impotent  order  of  a 
court  which  can  easily  be  nullified.  The  time 
has  come  when  intelligence  should  sit  in  the 
temple  of  justice.  We  want  fewer  laws,  fewer 
ceremonies,  less  parade  and  pretense,  less  delay 
and  expense,  simpler  judicial  machinery,  fewer 
governmental  functions  and  more  justice. 


CHAPTER  XVIII. 
CONCLUSION. 

In  the  foregoing  pages  we  have  depicted  a  few 
of  the  many  glaring  faults  in  the  laws.  Enough 
has  been  written  to  show  an  urgent  need  for 
reform,  not  only  in  details  but  in  fundamental 
doctrine.  Pruning  and  grafting  the  old  tree  may 
help  much,  but  no  remedy  will  be  complete  if  it 
does  not  abandon  forever  the  fundamental  errors 
in  the  system  and  organize  a  new  one  that  is  en- 
tirely logical  and  consistent  throughout,  substi- 
tuting simplicity  for  complexity,  substance  for 
forms,  and  justice  for  ancient  precedents. 

Those  who  have  read  the  other  volumes  in 
the  series  which  concludes  with  this  may  think 
that  the  author  looks  upon  the  institutions  of  his 
country  as  hopelessly  defective.  This  is  not  cor- 
rect. On  the  contrary,  it  is  his  confidence  in  the 
ability  and  disposition  of  his  countrymen  to  cure 
these  defects  that  has  led  him  to  undertake  this 
task. 

We  are  indeed  living  in  a  most  auspicious  time. 
So  swift  has  been  the  progress  of  the  world  dur- 


FALLACIES  OF  THE  LAW.       20I 

ing  the  last  half  century  in  the  direction  of  im- 
provement that  when  we  contrast  what  has  been 
accomplished  in  that  period  with  the  slow  prog- 
ress made  in  the  many  centuries  that  preceded, 
it  seems  as  if  humanity  in  this  new  world  has 
been  experiencing  a  new  birth  or  is  awakening 
from  a  lethargy  of  many  centuries.  We  feel 
everywhere  the  refreshing  breath  of  a  new  day. 
The  mighty  spirit  of  Progress  has  appeared  in 
our  sky,  and  with  her  wand  has  touched  science, 
art,  literature,  even  religion.  Why  should  not 
jurisprudence  feel  her  benign  influence? 

It  seems  impossible  that  a  nation  capable  of 
marvelous  skill  in  devising  other  means  for 
adapting  itself  to  better  conditions  is  powerless 
to  strip  its  jurisprudence  of  the  fungi  of  the  cen- 
turies and  convert  it  into  a  nobler  and  better 
system.  Is  it  too  much  to  hope  that  our  great 
people  will  prove  capable  in  this  respect,  and  that 
the  glorious  morning  which  now  paints  its  rosy 
promises  upon  our  sky  will  advance  to  a  perfect 
day  whose  brightness  will  not  decline  ?  May  we 
not  hope  that  a  greater  people  than  the  earth 
has  ever  yet  contained  shall  bask  in  its  beams  ? 

Great  nations  have  preceded  us:  from  cities 
comparatively  small  have  arisen  mighty  men 
whose  prowess  in  the  arts  of  war  and  skill  in  the 


202        FALLACIES  OF  THE  LAW. 

inventions  of  peace  have  given  their  names  to 
immortality  and  made  their  works  priceless  lega- 
cies to  mankind.  These  were  but  examples  of 
what  men  may  be  and  do  when  held  in  slavery 
and  oppression.  If  the  mighty  people  of  the 
future  are  cradled  in  liberty  and  guarded  by  the 
hand  of  justice;  if  their  limbs  are  free  to  perform 
all  tasks  for  which  the  human  body  is  capable, 
and  their  minds  unfettered  by  forms  of  supersti- 
tion and  governmental  restraint ;  if  like  the  great 
spirit  that  animates  the  universe  they  in  sympa- 
thy will  embrace  the  whole  and  their  intellects 
shall  penetrate  all  departments  of  human  thought, 
then  they  will  demonstrate  what  the  human  soul 
can  do  with  all  its  barriers  torn  away,  when  it  is 
left  free  to  choose  the  sphere  of  action  most  har- 
monious with  its  desires. 

In  the  fullness  of  that  glorious  day  justice 
shall  touch  the  thrones  of  monarchs  and  they 
will  crumble ;  the  truncheons  which  in  their  puny 
hands  have  terrified  the  world  will  be  but  curios 
in  the  museums.  The  castles  and  battlements 
of  robber  barons  shall  serve  but  to  feed  the  moss 
and  ivy.  No  longer  mighty  navies  shall  plow 
the  seas;  no  longer  frowning  forts  shall  mar  the 
shores;  the  tramp  of  armed  warriors  shall  be 
heard  no  more.     The  gallows  and  gibbet  shall 


FALLACIES  OF  THE  LAW.       203 

bear  no  human  fruit.  All  forms  of  governmental 
murder  shall  be  obsolete.  Much  of  what  the 
foolish  and  superstitious  past  hailed  as  magnifi- 
cent shall  fall  and  perish  utterly.  But  man  shall 
ascend.  From  his  place  in  the  dust,  under  the 
oppressor's  heel,  he  shall  arise;  his  unshackled 
feet  shall  stand  firmly  upon  the  solid  earth.  His 
unfettered  mind  shall  struggle  to  touch  the  most 
distant  star.  His  free  soul  shall  be  attuned  to 
that  divine  harmony  of  which  we  occasionally 
hear  a  note  and  call  it  justice. 

Those  of  the  future  shall  be  proud;  not  of 
unjust  privileges  created  by  law,  but  proud  in  the 
possession  of  a  liberty  to  do  whatever  the  just 
may  desire.  They  shall  be  rich ;  not  in  the  pos- 
session of  vast  quantities  of  wealth  unjustly  taken 
from  their  countrymen,  but  rich  in  those  rare 
qualities  of  mind  and  soul  which  any  may  possess 
to  the  fullest  and  still  deprive  no  one  else  of  his 
possessions.  And  they  shall  be  brave;  not  in 
the  pursuit  of  spoliation  and  murder,  but  in  de- 
fending truth,  justice  and  the  just  rights  of  their 
fellows  as  well  as  their  own.  They  shall  be  wise, 
and  in  their  wisdom  choose  the  best,  and  know 
that  the  best  does  not  include  an  unnecessary 
quantity  of  any  material  thing.  In  those  days 
there  will  be  lacking  many  of  the  displays  which 


204       FALLACIES  OF  THE  LAW. 

excessive  wealth  now  permits  its  pampered  pos- 
sessors to  flaunt  in  the  faces  of  the  poor.  The 
parade  upon  the  boulevards  may  be  less  splen- 
did, the  mansions  occupied  by  childless  million- 
aires may  be  less  magnificent,  but  the  people 
shall  all  have  comfortable  homes.  They  shall  all 
have  proper  clothing  adapted  to  the  varying  sea- 
sons of  the  year.  They  shall  all  have  nourishing 
food  sufficient  to  supply  their  wants  in  health, 
and  ample  time  to  improve  their  minds  with  all 
the  learning  that  the  age  affords.  There  will  be 
none  to  waste  the  products  of  others'  labor  in 
lazy  dalliance  or  luxurious  ease,  but  all  shall  be 
supplied  with  the  necessities  of  a  happy  life. 

There  will  be  laws  in  that  day,  but  they  will 
be  laws  protecting  liberty  and  enforcing  justice, 
and  they  need  be  but  few.  There  will  be  courts 
in  which  judges  shall  sit,  but  not  to  administer 
laws  they  do  not  understand.  To  them  the  few 
statutes  shall  be  as  the  alphabet,  and  familiar 
as  the  faces  of  life-long  friends.  These  judges 
shall  be  experts  in  the  power  of  analysis,  and  be 
capable  of  separating  the  real  from  the  seeming, 
the  true  from  the  false.  There  will  be  lawsuits ; 
not  controversies  where  rascals  shall  strive  to 
overreach  each  other  through  the  agency  of  law, 
but  controversies  where  honest  people  have  failed 


FALLACIES  OF  THE  LAW.        205 

to  agree  and  are  represented  by  noble  advocates 
who  seek  to  aid  the  judges  in  deciding  the  con- 
troversies in  accordance  with  truth  and  justice. 
And  there  will  be  judgments  rendered;  not  the 
products  of  fraud  and  corruption  or  senseless 
technicalities,  but  decisions  on  the  real  merits  of 
the  controversy,  in  which  superior  wisdom  and 
long  training  have  measured  out  in  exactness  the 
amount  necessary  to  repair  the  loss  which  has 
been  sustained.  Reparation  and  not  punishment, 
justice  and  not  revenge,  will  then  be  the  objects 
of  the  law.  The  nations  of  the  earth  will  then 
be  united  in  the  common  bonds  of  mutual  sym- 
pathy and  rejoice  together  in  protecting  the  just 
rights  of  each.  Like  the  mighty  orbs  that  have 
for  millions  of  years  moved  in  majesty  in  their 
courses,  propelled  by  that  attraction  which  each 
has  for  the  other,  so  shall  the  many  races  of 
mankind  move  in  their  respective  spheres,  expe- 
riencing no  serious  friction  or  collisions,  but  with 
that  precise  harmony  by  which  the  members  of  a 
great  orchestra  are  able  to  perform  a  divine  sym- 
phony. 

To  us  it  may  not  be  given  to  see  that  glorious 
day.  Our  eyes  may  not  witness  its  matchless 
perfection.  And  yet,  if  justice  is  the  prime  attri- 
bute of  the  Divine  Mind,  if  it  is  the  all-pervading 


206       FALLACIES  OF  THE  LAW. 

and  all-conquering  spirit  of  excellence  before 
whom  we  devoutly  worship  and  find  the  highest 
joy  in  loving  service,  may  we  not  fairly  hope  that 
when  that  final  harvest  day  has  come,  and  the 
seed  which  has  been  planted  with  protracted  care 
and  watered  with  many  tears  has  reached  its  full 
fruition,  we  too  may  be  found  among  the  reapers 
who  reap  as  they  have  sown  ? 


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